1 COLLECTIVE BARGAINING
A Powerful but Neglected Tool
In 1968, sanitation workers in the city of Memphis, Tennessee, participated in one of the most historic strikes in our nation’s history. These individuals, overwhelmingly Black, were paid poorly—between $1.60 and $1.90 per hour, with unpaid overtime often required. They were also treated with disrespect. They were given no uniforms, had no access to restrooms, and had no grievance procedure to address their legitimate complaints. In 1963, thirty-three workers were fired simply for attending a union meeting.
No wonder their primary rallying cry, the slogan they displayed on placards as they marched picket lines, was simply “I Am a Man.” Theirs was a struggle for human dignity, which they realized was deeply intertwined with the ability to control their own destiny and to fight for fair treatment. And to gain that ability, they needed the power to organize a labor union—a right that, for those workers at that time, was not fully protected under the law. Neither the economic system under which the Memphis sanitation workers labored nor the political system that defined their rights recognized them as full and equal human beings—and that’s what drove them to take desperate, dangerous steps to change their fortunes. Not just labor activists, they were freedom fighters in every sense of the term.
The 1968 strike was sparked when two sanitation workers, Echol Cole and Robert Walker, were crushed to death by a defective garbage compactor. After an angry meeting at a Memphis labor hall, 1,375 workers refused to go to work on Monday, February 12. As garbage piled up in the streets, the city government hired strikebreakers, almost all of them white.
The sanitation workers endured months of violence. Police squads used mace, tear gas, and clubs on peaceful marchers, and police shot and killed sixteen-year-old demonstrator Larry Payne. The violence culminated in the assassination of Dr. Martin Luther King Jr on April 4 while he was visiting Memphis in support of the striking workers.
The leaders of national labor groups were initially reluctant to support the strikers. Peter J. Ciampa, director of field operations for the American Federation of State, County and Municipal Employees (AFSCME), was quoted as saying, “Good God Almighty, I need a strike in Memphis like I need another hole in the head!”1 But over time the determination of the workers forced labor leaders to change their tune. Walter Reuther, president of the United Auto Workers (UAW), donated $50,000 to support the workers’ cause, and AFSCME provided organizing support.
Finally, on April 18, the city of Memphis yielded. It agreed to recognize the workers as members of AFSCME and offered wage increases and other concessions.
Today, workers all over the United States are following in the footsteps of the Memphis freedom fighters. Like their historic forebears, workers labor in circumstances that are grossly unfair, from inadequate pay and arbitrary schedules to dangerous working conditions. And like the Memphis workers, today’s workers are taking serious personal risks in challenging the system that oppresses them because their right to organize in defense of their interests is still not fully protected. Many groups—in industries from meatpacking to farming, hospital work to domestic employment, fast food restaurants to grocery stores, transportation to delivery services—are not yet recognized as labor unions. Yet these organizations behave like unions, taking input from their members, making tough decisions about organizing strategies and tactics, and standing as one against those who seek to keep them divided and weak. And sometimes they win—not every battle, but in growing numbers.
The single most-important tool for claiming the human rights that the Memphis sanitation workers fought for, and that workers of today are demanding, is the ability to engage in collective bargaining.
You have undoubtedly heard of collective bargaining in the context of labor relations. The form of collective bargaining that most Americans are familiar with is what we call worksite-based collective bargaining. It’s the process whereby a group of employees bands together to form a unit with the combined power to negotiate on equal terms with their employer. Employees from the Memphis workers in the 1960s to workers of today employed by Walmart, McDonald’s, Amazon, a chain of nursing homes, or a local school district have all sought the right to engage in this form of collective bargaining.
In this book we will show that worksite-based collective bargaining, while critical, is not the only important form of collective bargaining. The workplace is far from the only arena in which people can benefit from banding together to assert and claim their rights. Collective bargaining is a powerful practice that people can use to transform the ways in which neighborhoods, cities, school and health-care systems, government agencies, and even multinational corporations behave. In later chapters we will explain how this can happen and offer examples that illustrate how groups of people around the country are putting this concept to work.
But because most people primarily associate collective bargaining with workplaces and with the efforts of labor unions to improve the lot of employees, we will begin our exploration of the topic by looking closely at how worksite-based collective bargaining works. In the next few pages you will learn some facts that may surprise you because the antilabor bias that permeates too many corners of our educational system and the mass media has given millions of people a badly flawed impression of how labor relations actually work in the United States. Understanding the realities of collective bargaining is an essential foundation to considering how this powerful tool can be used to improve the lives of people from every walk of life.
Collective Bargaining: What It Means and How It Works
Traditional worksite-based collective bargaining, at its best, is a system by which working people can exercise collective power and directly confront the owners of capital in a way that reclaims portions of that capital for working people and their communities. This type of collective bargaining has served as a direct mechanism to fight for a fair return on the labor working people invest into building, operating, servicing, or moving something. In this way collective bargaining allows everyday people to “practice democracy”—directly engaging in the decisions and choices that affect their lives.
As a result, worksite-based collective bargaining has provided an essential pathway to economic sustainability for millions of US workers, ensuring they can support themselves and their families and live decent lives with a manageable level of economic risk. In other democracies, the fundamental features of a social safety net such as health care, retirement income, and unemployment benefits are usually paid for through taxes and provided to people directly by the government. That’s generally not the case in the United States. Therefore, for most of the past century, a union contract that embodies the results of the collective bargaining process has been the best tool for US workers to ensure they have access to these basic elements of a decent life.
When people talk about “union power” or “the labor movement” as a force in US society, the most important thing they’re talking about is the power of unions to insist on collective bargaining to protect the rights of workers.
How, exactly, does worksite-based collective bargaining work? We can start our discussion with the kind of definition you might find in a dictionary:
Collective bargaining (noun): the process whereby employees, identified as a bargaining unit, negotiate as a group, often through an elected bargaining committee, with their employer to determine wages, hours, and other permissible conditions of employment, resulting in a written agreement or contract that defines policy either for all employees of that employer or for those specifically represented by the bargaining committee.
Definitions like this raise more questions than answers for many people. What is mandatory for employers to bargain over? Who is counted in the bargaining unit? What is permissible to bargain over? There is an entire industry of lawyers, consultants, and policy advocates dedicated to clarifying questions like this and interpreting the law in ways that meet the needs of their clientele. For its part, the government provides some clarity through the National Labor Relations Board (NLRB). But even a scan of the NLRB website just raises more questions. For example, what does it mean when the NLRB site advises employers that they have the right to “bargain hard, provided you seek in good faith to reach an agreement”?2 Can someone just explain collective bargaining all in one place?
Here’s a basic explanation of what you need to know.3
What is collective bargaining? Collective bargaining is the formal process of negotiation between an employer and a group of employees—often with their union representative—that sets the terms and conditions of work.
Collective bargaining results in a collective bargaining agreement (CBA), a legally binding agreement that lays out policies agreed to by management and labor. Because of its role in governing the actions of both management and labor, a CBA is often referred to as “the law of the workplace.” While every CBA is unique to a given labor-management relationship, most include provisions that address pay, scheduling, promotions, discipline, and job standards. CBAs also usually contain a grievance procedure, which provides a process for resolving disputes between management and labor over interpretation of the contract or regarding employee discipline or termination.
When does collective bargaining occur? Employees and employers engage in collective bargaining to negotiate new contracts and renegotiate existing contracts that have expired. For some this occurs annually. For others it occurs on a less frequent basis, depending on what was negotiated and agreed to.
In 2015 alone, an estimated five million men and women took part in the collective bargaining process, which was well above average. In 2021, the Federal Mediation and Conciliation Service (FMCS) received approximately 19,000 notices of expiring collective bargaining agreements, representing more than 1 million workers.4 These are big numbers that show how common collective bargaining is. It’s a proven method for reaching fair agreements between workers and employers, and it is used successfully in many organizations all the time. Yet only 7.4 percent of private-sector employees and 39.2 percent of public-sector employees are covered by a CBA.
Collective bargaining works. Unfortunately, only a small fraction of people are currently enjoying its benefits today compared to its heyday after the passage of the National Labor Relations Act (NLRA) in 1935. As early as 1963, at least one author referred to collective bargaining as “old before its time.”5 While some may echo this assessment to say that collective bargaining should be abandoned for other approaches, we think that at its heart it is very much worth keeping and expanding on.
Who can collectively bargain? Passed in 1935, the NLRA—also known as the Wagner Act—grants most private-sector employees the right to organize unions and collectively bargain. The Railway Labor Act (RLA) provides railway and airline employees the right to form unions and engage in collective bargaining. Between the NLRA and RLA, approximately 85 percent of all private-sector employees officially have collective bargaining rights. Some members of the private sector, including employees of very small businesses, agricultural workers, domestic workers, supervisors, and workers classified as independent contractors do not consistently have the right to engage in collective bargaining.
Collective bargaining rights for those in the public sector—that is, employees of federal, state, and local government agencies—are established by a patchwork of laws. Federal law offers many federal employees the right to engage in collective bargaining over a limited set of issues, and state laws determine whether state and local government employees can engage in collective bargaining. As of 2014, three states—North Carolina, South Carolina, and Virginia—expressly prohibit collective bargaining for all public-sector employees at the state level.6 Though in 2021, Virginia allowed municipalities to loosen restrictions.7 These laws are considered by many people in other countries to be inhumane. For example, the prohibition of bargaining is viewed by the nonprofit organization Human Rights Watch to be in direct violation of international human rights laws.8
What topics can employees bargain over? The NLRA—the law that applies to most private-sector employees—does not include a list of bargaining topics. However, rulings by the courts and policies set by the National Labor Relations Board (NLRB; created by the NLRA) determine which subjects are covered. They divide bargaining subjects into three categories: mandatory, permissive, and illegal.
Mandatory subjects, broadly speaking, relate to wages, hours, pensions, health care, and working conditions—for example, measures to protect the health and safety of workers while on the job. Employers cannot refuse to bargain over these subjects, and negotiations may continue to the point of mediation if an agreement is not reached.
Permissive subjects are nonmandatory subjects of bargaining, meaning employers are not required to bargain over them. The requirement for a company to use union-made goods in its own operations is an example of a permissive bargaining subject.
Finally, illegal subjects are those that would violate any law. These cannot be bargained over, even if both parties agree. So, for example, a provision that requires discrimination based on a person’s sex would be illegal.
This is the current framework that governs collective bargaining in the workplace. Later in this book we will share bargaining strategies that can help workers go above and beyond what is mandatory or permissive. We will explain the importance of bargaining over issues that violate laws we consider to be unjust, such as laws restricting protections for immigrant workers.
How does collective bargaining work? The collective bargaining process is similar to everyday negotiations between other parties over other topics—for example, the process of negotiating a merger between two companies. Bargaining commonly begins with employees coming together with their union to determine and prioritize a set of issues to raise with their employer. A bargaining committee made up of employees and union representatives then meets with management at the bargaining table, presenting a series of proposals and explaining the intention behind them. Management responds with its own proposals and counteroffers. The sides typically begin to reach agreement on some proposals while trading counteroffers over unresolved issues. The length of the bargaining process and the number of rounds of offers and counteroffers varies depending on the complexity and number of bargaining proposals.
In some instances, companies and workers engage in interest-based bargaining (IBB), a practice where neither party comes to the table with proposals. They instead meet for conversations aimed at finding solutions that work for both sides. IBB is often used in negotiations between employers and employees of nonprofit organizations, where both sides share common values.
Collective bargaining in the United States is typically a decentralized process, occurring between a single employer and its employees. However, in industries like hospitality and trucking, employers and unions sometimes engage in regional or industry-wide bargaining, where a CBA covers employers in a specific city or across an entire industry.
In the construction sector a project labor agreement (PLA) serves as a prehire collective bargaining agreement, establishing the terms and conditions of employment for a particular construction project. PLAs are negotiated between a coalition of building trades unions and a general contractor. Typically they require all the contractors on the project to pay fair wages and to contribute to joint labor-management health, pension, and training funds.
What role do unions play in collective bargaining? The collective bargaining process needs a vehicle through which it can happen. For most working people that vehicle is a union.
Employees join together to form a union, either through an election of the majority of employees or by the majority of employees signing authorization cards saying they want to be recognized collectively as a union.9 The latter process is often referred to as card check. Once most employees express support for unionization, they form a new union or join an existing one.
Union members then pay dues to fund staff and infrastructure to support their interests. The infrastructure most often connects them to union groups in other places representing workers at similar employers or those doing similar work. These separate union groups are called locals. Collections of union locals make up regional and district councils, state organizations, and national and international unions. Furthermore, these national and international unions form federations and local labor councils throughout the country. The biggest such labor organization in the United States is the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). All these labor organizations at the regional, district, state, and national levels seek to represent the interests of working people, particularly, though not exclusively, in the political arena. When the federal Bureau of Labor Statistics defines the number of union members in the United States, it is talking mostly about people who relate to these institutions.10
What happens when management and labor do not agree? If, after legitimate good-faith negotiations, management and the union cannot reach agreement on one or more mandatory subjects, they are said to be at an impasse. Because the NLRA requires both sides to negotiate in good faith but does not force either side to agree to a proposal with which that side disagrees, when the two sides reach a legitimate impasse, management may unilaterally implement a final offer. Alternatively, both sides can agree to engage in a mediation process where a federal or private mediator or arbitrator helps the parties work toward an agreement.11 Labor or management may also try to exert economic pressure to force the other side into agreement.
In the private sector economic pressure typically occurs in the form of a strike, when workers withhold their labor and negatively affect a company’s ability to function, or a lockout, where employers prevent workers from working and in some instances replace them with nonunion workers.12 Since the passage of the NLRA, the threat of legally protected work stoppages has often pushed the sides toward agreement. Additionally, the decrease of union density and power and the increase in using permanent replacements for striking workers have made strikes and lockouts less common in recent decades. However, there has been a recent uptick in strikes, with more strikes occurring in 2018 than in any single year since 1986.13 And the fall of 2021 saw so many worker-led disruptions that it was dubbed “Striketober” in the mainstream media.14
Unlike in the private sector, many public-sector employees do not have a legally protected right to strike. Federal law allows the government to fire striking federal workers, while state and local laws vary on whether state and local employees have the legal right to strike. Some states, like Pennsylvania, prohibit strikes by emergency workers (police officers, firefighters, and prison guards) but offer them access to a binding arbitration process for unresolved bargaining issues to guarantee that the parties reach an agreement.
This patchwork of rules results in varied treatment for different categories of public workers. President Reagan famously fired striking air traffic controllers organized with the Professional Air Traffic Controllers Organization (PATCO) in 1981, a fight that ultimately led to the creation of Jobs With Justice. By contrast, many government employees have gone on strike without suffering such a penalty, such as the Chicago Teachers Union in 2012. And while not officially on strike, many Transportation Security Administration (TSA) employees and air traffic controllers slowed down work by calling in sick during the federal government shutdown in January 2019 to protest having to work without pay.
The Power of Collective Bargaining
In the twentieth century the spread of collective bargaining has lifted wages for working people as a whole; given many families access to programs that supply basic human needs like retirement, health care, and paid leave; and helped to democratize once-tyrannical workplaces by providing a clear set of policies along with the ability to enforce them through a process that enables employees to file grievances. Maybe most notably, and certainly to the deep dismay of the wealthiest, collective bargaining has acted as a means for redistributing wealth and ownership, directly challenging the drivers of inequality in society. Collective bargaining significantly increased upward mobility in the United States in the mid-twentieth century.15 This trend was catalyzed by unions, by other movements of working people, and by the passage of laws protecting workers’ rights. Collective bargaining played a key role in enabling many Black and Brown people to escape poverty and attain economic security in the United States.
Collective bargaining, in its many forms, allows working people to directly confront the corporate actors behind inequality and ensure that working families can shape their own social and economic futures. Like voting, collective bargaining is a way that we exercise power in a healthy democracy. It is not simply about the right to join a union but rather the ability to have a say in how your worksite or industry is governed.
To fulfill its true potential, collective bargaining should be seen as a gateway to democracy in the entire economic arena. Yet, as mentioned earlier in this chapter, for all the good it has done for so many, traditional collective bargaining is having trouble keeping up with the needs of workers, especially given the form of capitalism that we face in the twenty-first century that is characterized by financialization, fissured economies, and a widespread distrust of institutions that used to represent the heart of our democracy. We need not only ensure that collective bargaining is accessible to workers in this climate but also deepen its effect if it is to become an impetus to the revival of democracy.