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CLARIFICATION: THE 'CONTINUOUS BARGAINING APPROACH'

[A Troublemaker's Handbook 2, page 81, "The Continuous Bargaining Approach," has been clarified as follows:]

USING MID-TERM BARGAINING AND A CONTINUOUS BARGAINING APPROACH
by Nancy Lessin and Roni Neff

Union leaders traditionally negotiate a contract and then shift their focus to enforcing the rules they've established. Bargaining ceases till the next round of contract negotiations. But in between contracts, employers continue to bring in new procedures, programs, and technology that can change workers' risks considerably. Scientific understanding of hazards also keeps growing. A "continuous bargaining" approach means not waiting until the contract expires to address issues but engaging management in a continuous bargaining process, as needed to deal with changing conditions and new understanding of health and safety hazards. It may involve legally-supported, formal "mid-term" bargaining.

The National Labor Relations Act and rulings subsequent to the Act provide a legal basis for mid-term bargaining. Employers often make changes in health and safety rules, bring in new rules, or change conditions in ways that affect health and safety. Before adopting new policies, procedures and practices--and before announcing these changes to employees--employers must notify the union of the proposed changes. If the union requests bargaining, the employer must bargain to agreement or impasse. The union must "promptly" request bargaining, when notified of the change by the employer, in order to retain bargaining rights. If an employer distributes a general announcement about a change to employees, this is not deemed by the National Labor Relations Board to be proper notification to the union.

More commonly, employers implement changes without properly notifying the union and providing an opportunity to bargain. This is called a "unilateral change," which violates Section 8(a)(5) of the National Labor Relations Act. Unless there is a "clear and unmistakable" waiver of the union's right to bargain written into the contract--giving the employer the "exclusive" or "sole" right to make changes/decisions regarding that issue--the union can file an unfair labor practice charge up to six months after the change. If a complaint is issued by the Board, the employer could be ordered to suspend the policy, compensate employees for lost wages and benefits, rescind discipline, and bargain on the policy.

In any case, the union always has the right to bargain over the effects on employees of a new program, rule, or policy, such as how the rule will be enforced. Effects bargaining is inferior to decision bargaining, but the union should still insist on it.

The Board usually refers charges about unilateral change back to the grievance-arbitration system. This is called “deferral.” Unions should introduce the NLRB deferral letter at arbitration and have the arbitrator resolve the unfair labor practice issues. One possible way to avoid deferral to grievance-arbitration is to file requests for information regarding the change in question. If the employer does not respond to information requests, the union should inform the Board as part of the ULP charge that the employer violated its duty to provide the requested information. In situations where failure-to-provide-information charges are linked closely with unilateral-change charges, the Board can issue a complaint on both charges even if an employer has requested deferral to the grievance-arbitration system. It can be beneficial to delay the filing of a ULP in a unilateral change situation until the union has filed detailed information requests. Should the employer fail to provide the requested information, include that allegation in the ULP regarding the unilateral change.

If the employer brings in a policy that the union wouldn't otherwise have the right to bargain over, the health and safety impact of the policy can still give the union a foot in the door. The union should view health and safety broadly, to include problems caused by stress, understaffing, extended work hours, and work overload. A new work schedule, an attendance program, technology that increases the work pace, "multiskilling" or downsizing that increase the workload—these may all affect workers' safety or health and thus are subject to the union's demand to bargain over the impacts of employer changes.

When applicable, the regular negotiating team should address these issues by requesting formal "mid-term" bargaining. But just like in regular bargaining, the law giving the union the right to bargain does not give the union the power it needs to win at the bargaining table. A four-point plan that involves research/gathering information, communicating with/involving the membership, developing proposals/demands, and identifying and building leverage are essential.

In addition to formal mid-term bargaining, a continuous bargaining approach can be used by unions and their health and safety committees. Union members who serve on joint labor-management health and safety committees should go into joint meetings as if they were going to a bargaining session. The tools unions use to build their power and win demands when bargaining their contracts are the same tools that are useful in winning union demands in a joint health and safety committee meeting. Too often, management tends to control the agenda of joint meetings, but this needn't be the case if the union treats the meetings like bargaining sessions.

Tips for effective continuous bargaining meetings with management:

Prepare for meetings as if they were bargaining sessions. Union representatives should be trained for their bargaining roles and should meet in advance to plan. (Ideally, seek contract language allowing planning meetings on company time.) Planning should include: understanding member concerns and identifying issues to raise; documenting the health and safety impacts; reviewing the related laws and scientific research; analyzing where management is vulnerable; deciding what solutions you want to suggest; and developing a strategy, including escalating tactics, if management is not willing to address problems.

Act like bargainers. Caucus regularly during joint labor-management meetings, to maintain a united response and to remind employers that they are dealing with the union, not a group of individuals. Agreements made, with deadlines for fixing problems, should be recorded in the minutes.

Involve members: Learn their concerns and keep them informed with one-on-one conversations, surveys, fact sheets and newsletter articles, and presentations at union meetings. Use visible strategies like t-shirts and buttons to demonstrate to management that it's not just the people sitting around the table stating these concerns, and use other pressure tactics described in this chapter.

Leverage: Besides member mobilization tactics, use information requests and consider OSHA complaints and other tactics, as described later in this chapter.

[For more on continuous bargaining, see Chapter 6.]