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Creative Chaos: Working without a Labor Contract
How to win a union when the boss thinks your down and out.
There has been an upsurge in unionism, well sort of. Many workers at small-scale consumer sector facilities, such as Starbucks coffee outlets have passed Step One, gaining recognition of their union. It’s a long, long trail from them to winning job security, good wages, and working conditions.
This article is about Step Two, winning a contract, and what to do before the ink is dry.
When Do We Get A Union?
Many people believe that you don’t have a union until the election is won, and a contract is ratified. This is not true. A union is born when two or more people get together to improve their conditions at work. Everything after that is icing on the cake.
Of course, when people come together to have a union, that’s when the work begins. Then you have to convince a majority of workers that a union is a good idea and they should support one. Sometimes this is a long process, and sometimes it happens immediately. It all depends on how bad working conditions and/or pay are and how willing workers are to do something about it.
The next step is to have every supportive worker sign a “representation” card or petition. This allows the union to tell the employer that a majority of workers want a union and the employer should be resigned to bargaining a “bill of rights,” also known as a union contract.
Once in a while, an enlightened employer will willingly agree to a contract with the workers. Usually, the employer will fight the union to the bitter end. Many times the employer tries to drag out the process until the workers get tired and give up.
What many experts won’t tell you, or maybe don’t know, is that having union recognition, but no contract, is a golden opportunity for the union to grow in strength and experience.
The remainder of this article explains how not having a contract can be a bonus for an activated union.
Working Without a Contract
Not working under a contract actually can have a liberating effect. We lose many of the restrictions that previously existed with the contract. We can engage in “concerted activity” (raise hell). We can strike. Everything becomes grievable, including “merit” raises. In contrast, after the contract is signed, changes can only be made by bargaining.
In some cases, instead of negotiating a mutually agreeable contract, the employer will “impose” conditions. This is something like making the Employee Handbook, in which workers had no say, a pretend contract. It is as if the employer assumed dictatorial powers. Like most dictatorships, it won’t be able to stand up to a peaceful, but adamant resistance.
Imposing a contact makes the employer look bad. It shows that they are anti-democratic and disrespectful to workers who are seeking their legal rights. It shows disdain for the basic method of resolving differences in a free society – by negotiating.
Instead, it is based on a power relationship that we can define with the slogan, “Might Makes Right.”
If imposed conditions resemble a military dictatorship on a national level, there is a basic difference. Under imposition, we can’t be shot for standing up for our rights. In fact, very little can happen to long-term employees. The courts have ruled that long-term workers have a property right to their job and can’t lose it without due process.
Still, there is a risk to individuals. But there is always risk when we try to change the status quo. Workers cannot be fired when they are engaging in protected union activity, such as a picket, rally or strike. Yet it happens.
Once union recognition, the Union (and the Employer) come under the jurisdiction of the National Labor Relations Board (NLRB), which administers the National Labor Relations Act (NLRA), which has been in existence, in one form or another, since 1935.
This Congressionally-passed law is the strongest legal force in protecting workers’ rights. For instance, if the employer arbitrarily changes any working conditions or wages after the union receives recognition and before a binding contract is negotiated, it becomes an issue for the NLRB.
A worker, with the agreement of co-workers, or a union representative can fill out a simple form and take it to an NLRB office or send it in. It takes about five minutes and can be hand-written. An NLRB agent is likely to tell the employer that the change must be negotiated with the union. The employer, rather than being forced to negotiate with the dreaded union, will likely withdraw the change. If workers had a contract, they could not go to the NLRB, but would have to file a grievance. There are pros and cons to both processes. My experience is that workers are more likely to win an NLRB charge than a grievance which will often drag on and perhaps end in arbitration a year or so later.
The other benefit of filing an NLRB charge, or charges, is that the employer quickly learns that it is no longer in full control of what happens at the store, plant, institution, warehouse, or what-have-you. Every union has a right to file NLRB charges, and the more, the merrier (for the union).
The NLRB is one of the “outside parties,” that can play an important role that ultimately helps the union. Other “outsiders” include customers, the media (social and mainstream), other companies in the same business, other unions and labor bodies in the area, the clergy and other respected people in the community, various levels of government such as city councils and legislatures, sub-contractors, and the public at large. It is important to get all of these on the union’s side.
What is Creative Chaos?
It is causing such disruption to business as usual that the employer longs for contractual relations with the union.
Here is a by-no-means-exhaustive list:
Grieve everything. As with many other chaotic tactics, the process is more important than the end result. The process should be aimed at drawing into the fight as many workers as possible. Morale can suffer if workers have to wait a long time for anything to happen with their new union. A “grievance committee” can be as many people as possible, including an entire department, shift, or multiple classifications. Remember, every grievance should be an organizing opportunity. If there is a major grievance involving the whole workplace, put out a flyer detailing the attitude of management and telling about the achievements of the union and its goals, if feasible. Make of list of media with which you can establish a working relationship. Call them in when something newsworthy is happening.
Bargain about everything. Don’t let management make the slightest change without demanding to bargain (when representing the union, your behavior should be civil but firm. If hours for breaks, or start times are changed, demand (in a nice way) to bargain. If the employer refuses, file an NLRB Charge. As with grievances, the bargaining should be done with as large a committee as possible and in as public a manner as possible. The union has the right to name the individuals on the bargaining committee and the size of the committee. If the employer doesn’t like it, it has the right to file an NLRB Charge.
File a ULP. Not all NLRB Charges, called Unfair Labor Practices (ULPs) are about changes in working conditions. They can also be about reassignment because of union activity, suspensions, and firings. They should be treated very seriously by the union, and with maximum activity by workers.
Conduct an inspection. Make sure there are no health and safety violations at your workplace. If so, take photos, get co-worker witnesses, and call in the appropriate government bodies. Even if the employer only receives a “slap on the hand,” it will keep momentum on the union’s side.
Missing Overtime. If workers are not getting time and one-half pay for work over 40 hours per week, have them fill out a form from the Dept. of Labor’s Wage and Hour Division which administers the Fair Labor Standards Act (FLSA). This is separate from the NLRB but is another agency of the federal government. These forms can be filled out by anyone but must be signed by the worker getting screwed before being filed with the Wage and Hours office. Unpaid overtime is another example of why we need a union.
The one-day strike. This is a so-called “unprotected activity.” Yet, many workers, including nurses and government workers routinely conduct them because of the large amount of pressure put on the employer. Every workplace is different so you must judge if you could pull it off without repercussions. Even a rumor about a one-day strike could send the boss into conniptions. If a one-day strike is undertaken it should include all or nearly all workers in the facility
The ULP strike. A ULP strike is legal. Certain conditions apply. There has to be an actual unfair labor practice that is serious enough that a “reasonable” observer wouldn’t blame you for walking out. The strike has to be open-ended, that is, it can’t be for one day. Often, ULP strikes involve collective bargaining where the employer simply refused to negotiate with the union.
The “strike on the job.” This is nearly all of the above and more. The aim of this type of strike is to “run the workplace backward.” You, and your co-workers, know better than anyone else how to do this. Some of these discussions should be carried on in small groups. For some tactics, it’s better not to tip off management ahead of time. This tactic is also called, “work to rule,” which means don’t do any more work than the bare minimum. Don’t do the boss any favors.
Making common cause with our allies. Who are your most important potential allies? They could be other workers at your facility who are not covered by your union or already have their own union. If you work at a Starbucks, it would likely be your customers, as it is in most retail facilities. Your allies, if they don’t work for your employer, are not covered by the NLRB. They are covered by the Bill of Rights, including Freedom of Speech. If they have an opinion on your union campaign (hopefully, positive), as customers, they can speak their minds, wear a pro-union button or sticker, or even hold signs outside your workplace. It’s important to cultivate as many allies as possible. Other unions usually have members who are willing to help anyone seeking a union. Feel free to ask them for help. But it’s not a one-way street. When someone comes to us with a problem, we have to be prepared to help them. Even after we will our contract.
All of these tactics are designed to win a good union workplace with better pay and benefits. Think about how each tactic applied to your workplace will help us win, and then Do It!