There are clearly benefits to being free of the restrictions of a no-strike clause. But getting free of the tyranny of no-strike clauses is no easy feat for unions that are regulated by the post–Taft-Hartley labor law regime. Courts have actually ruled that unions that have somehow managed to resist signing away their protest rights by agreeing to a no-strike clause have nevertheless surrendered them by agreeing to grievance procedures that include the recourse to neutral third-party arbitration.32
Management’s Rights
Union contracts cede tremendous decision-making power to bosses. A typical “Management’s Rights” clause goes something like this:
All of the rights, powers, prerogatives, and authority of the management of the Employer’s operations are retained by the Employer and remain exclusively within the rights of management. These include, but are not limited to, the right to direct, transfer, hire, discipline and discharge employees as well as determine the objectives and priorities of the company.
It is understood and agreed that the rights of management shall be deemed only limited by the express provisions of the Agreement and not by implication or construction. The failure of the Employer to exercise its full rights of management or discretion on any manner or occasion shall not be a precedent or binding on the Employer, nor the subject or basis of any grievance nor admissible in any grievance proceeding.
Any of the rights, powers, or authority that the Employer has prior to the signing of this Agreement are retained by the Employer, except those specifically abridged, delegated, granted to others, or modified by this Agreement or by any supplementary agreements that may hereafter be made.
Language like this was a reasonable concession when collective bargaining agreements were one-year truces that settled a few grievances and set the wages for the year. It’s still sometimes reasonable in those rare bargaining relationships where the concept of “labor-management partnership” isn’t a joke, where management accepts the presence of a union as a reality of life and tries to get along for the sake of maintaining a smooth operation. But when most employers are engaging in a one-sided class war, this sort of broad management’s rights clause should not be treated as a routine of bargaining. It certainly should not be allowed to limit a union’s vision of what workers want, or to lower members’ expectations of what’s winnable or to limit our power.
Today, it is common for union negotiators bargaining a first contract to actually propose the management’s rights clause! The routine logic for this is that, of course, there’s going to be a management’s rights clause, so we might as well propose one that doesn’t give away the shop. But I’ve also seen these union negotiators sign off on the management’s rights clause long before the rest of the contract is settled. Historically, signing away the boss’s duty to bargain over changes was the last item on the table until all grievances were settled and the money was good enough.
Moreover, the suggestion that a union bargaining a successor agreement (binding a successor employer) should start from the position that having a management’s rights clause was okay for the last contract but not this contract would be greeted by negotiators on both sides of the table as stark raving lunacy.
But here’s the crazy thing about that. A union with its back against the wall, bargaining for a successor agreement against an employer that’s clearly aiming to gut the contract or bust the union, can find it very advantageous to continue to bargain after the contract’s expiration and continue to stay on the job.
I mean, there are entire strategy manuals on working without a contract. It’s a critical escalation of what are called “work to rule” or “inside” campaigns. When a collective bargaining agreement expires, the terms of the agreement don’t automatically go away—just the management’s rights clause. As a movement, we know there is power in this.
I run the risk here of oversimplifying, or having the NLRB change the rules two months after this book is published, but the basic rules of bargaining go like this: A non-union employer gets to make all the decisions. Once a union has been recognized as the representative, a kind of status quo is established. Oh, the employer can make changes, but if those changes affect those pesky “mandatory” subjects of bargaining (wages, hours, and working conditions), they must first be proposed to the union that represents the workers. The boss can only make the change if the union agrees, or if he can bargain the union to what’s called “impasse.” Impasse essentially means, “We don’t agree.” However, a union can drag out the process of not agreeing by pushing paper back and forth with minor changes to the boss’s demands, or by requesting detailed, onerous, and relevant information requests.
Even where there’s a well-established collective bargaining agreement, when it expires the workplace returns to the status quo of a newly organized shop. It is perhaps more disruptive in a workplace where management has been used to the routine of having the broad powers of a management’s rights clause.
What’s a mandatory subject of bargaining in this scenario? New uniforms for the workers, moving the start of the a.m. shift from 7:00 to 7:30, switching up the menu in the employee cafeteria, lowering the thermostat by one degree. Sometimes it takes a keen eye and creative mind. In contract rights at the Hotel Employees union, we would demand to bargain over new carpets and coffeepots in the guest rooms. Even the threat of us filing an unfair labor practice charge, seeking a remedy that the new carpeting should be removed until the hotel bargains in good faith over the change, was enough to provoke some movement by the other side.
Such a charge is obviously unlikely to be successful under a Republican majority NLRB. Nevertheless, we clearly understand that there’s power in denying the boss his management’s rights, but we don’t pursue the strategy of denying management its unfettered right to run the enterprise as a matter of course.
Instead, we have capitulated to the notion that the boss gets to run his business, and we just get to ask for more money. This is, literally, not what workers want. Researchers Richard B. Freeman and Joel Rodgers have conducted deep surveys of workers’ desires regarding workplace representation. Their book What Workers Want concluded that workers want “more” from workplace representation: “More say in the workplace decisions that affect their lives, more employee involvement in their firms, more legal protection at the workplace, and more union representation.”
But “most workers do not believe that, under current U.S. policies, they can get the additional input into workplace decisions that they want.”33 Workers have very limited influence over the state of labor law, but we do control what we demand and fight for.
I want to take the briefest of respites from this fairly pessimistic narrative to acknowledge that most union members really value their collective bargaining agreements. Collective bargaining has improved the pay and working conditions of millions of workers, and most union members shudder at the thought of losing the protections of their CBAs.
But, that said, we have allowed a moral and strategic rot to set in. I can’t tell you how many times I’ve overheard a union representative respond to a member’s complaint with a gruff, “They’re allowed to do that. It’s management’s rights.” Look, I get it. Most union representatives work very hard; they’re overwhelmed with how many grievances and negotiations they’re juggling; and this is an easy way to make one more problem go away. Plus, whatever training they’ve received has probably emphasized the strict boundaries of management’s rights, and for them to “tell the difference” between a grievance and a “gripe.”
But what, exactly, do we expect a union member who’s been told, “There’s nothing we can do” to tell a friend or family member about their experience of being in a union? And why are we surprised that more workers aren’t organizing?
“The Union Can’t Protect Your Job”
So, finally, this is the trap in which we find ourselves caught. Unions