The Urgency Of Understanding How Unions Successfully Collectively Bargain
Workers are negotiating with some of the wealthiest and most powerful companies that have ever existed.
Two weeks after Stephanie Russell-Kraft left her reporting job at Law360 to take a better position with Reuters, a Law360 rival, Reuters fired her. At Law360, Russell-Kraft had signed non-compete and non-disclosure agreements, and when she left, the company notified Reuters.
Without any finding that the agreements were enforceable, or that Russell-Kraft had violated her contract with Law360, Russell-Kraft was terminated at the behest of her old boss.
In the aftermath, working as a freelancer, Russell-Kraft made 40% less than what Reuters offered her as a starting salary, and lost out on overtime benefits and health insurance. “After I was fired, I spoke with many lawyers who told me Law360’s contract was probably illegal,” wrote Russell-Kraft in 2017. “I did not, however, have $50,000 to cover the cost of proving it in court.”
When I talked to Russell-Kraft’s former coworkers, they gave numerous reasons why journalists and other workers at Law360 had been eager to jump ship: low pay, a grueling quota system that required them to produce as many as four stories per day, and few opportunities for advancement.
But the company’s move to enforce its non-compete against Russell-Kraft sent the message that such conditions were inescapable. If workers tried to take similar jobs at other legal news organizations, Law360 would make sure they wound up unemployed.
While the Law360 workers I spoke to didn’t jump ship, they also refused to accept jobs that treated them like research and writing machines.
As then-New York Attorney General Eric Schneiderman opened an investigation into Law360’s use of non-competes, workers began talking to one another and secretly organizing a union. In June 2016, less than a year after Russell-Kraft’s departure, the New York AG announced a settlement with Law360 that required the company to rescind its non-competes for all but the most senior executives — an early harbinger for current action by the Federal Trade Commission to ban non-compete clauses.
On July 19, workers filed for a union election. When the votes were tallied on August 24, workers had voted 109–9 to join the NewsGuild-CWA.
The story of what happened next is the focus of Rules to Win By: Power and Participation in Union Negotiations, my forthcoming book co-authored with the organizer and scholar Jane McAlevey.
Through six case studies on union negotiation campaigns — including the fight to win a first contract at Law360 — we document how worker participation in collective bargaining can transform not only the negotiations process, but unions and workplaces as well.
The benefits of collective bargaining for workers and society as a whole are well studied. Union negotiations—and the contracts that result—raise wages, reduce racial inequality, improve public health, and strengthen our democracy.
While support is decades-high for unions, the percentage of private sector workers covered by a collective bargaining agreement continues to decline.
The Economic Policy Institute estimates that more than 60 million workers wanted to join a union in 2022, but couldn’t.
“The fact that tens of millions of workers want to join a union and can’t is a glaring testament to how broken U.S. labor law is,” writes EPI.
Meanwhile, cities and states have tried to fill that gap with higher minimum wage laws, recall rights, just cause protections, and other worker protections.
But union negotiations are more than a means to achieving higher standards: they involve mass worker participation, deliberation, and intense political education—at least when they are done right. And they help produce a lasting organization that ensures these higher standards are enforced over time.
The negotiations process itself is chronically understudied, particularly from the perspective of those seeking to push the bounds of what workers are able to win. But it can yield important lessons not just for union organizing but for broader efforts to tackle economic inequality and workplace injustice.
Understanding how unions successfully collectively bargain has particular urgency right now.
Workers are sitting across the negotiations table from some of the wealthiest and most powerful corporations that have ever existed.
In the last year alone, workers have proven that it is possible to win a union election at an Amazon warehouse, at nearly 300 Starbucks stores and counting, and—after over 30 years of organizing—at Yale University. But winning union recognition and having your union certified doesn’t mean you necessarily win your organizing demands.
Securing a first contract requires withstanding and overcoming the vicious anti-union campaign that employers of all types will almost certainly direct at workers trying to improve their workplaces.
At Amazon’s warehouses, textbook union-busting has been on very public display with the company firing union activists, flooding the workplace with anti-union messaging, and even asking local officials to re-time a traffic light to make it more difficult for union organizers to talk with workers coming to and from work.
Too much of this union-busting is entirely permitted under weak federal labor law.
Even when an employer violates the law, legal recourse offers too little, too late. Available remedies are so insignificant and are often so delayed that employers routinely choose to break the law to stave off unionization, with little fear of meaningful consequences.
As Rules to Win By documents, anti-union campaigns don’t go away once workers win a union election.
Employers will bitterly contest the election outcome and question the legitimacy of a process already skewed in their favor. If those efforts fail, employers then take aim at collective bargaining—especially at first contract negotiations—as another opportunity to undermine worker organizing.
As the focus shifts from securing majority support for the formation of a union to reaching agreement on the terms of a contract, employers have successfully shaped the negotiations process to their advantage: small, opaque, often lawyer-driven, and painfully slow.
Unions that default to negotiating this way may spend years at the negotiations table, lose all organizing momentum, and ultimately agree to contract proposals that sow seeds for the boss to undermine the union over time.
Against this backdrop, McAlevey and I advocate for an approach called “high participation negotiations”: negotiations that are transparent, big, and open to all of the workers covered by the collective bargaining agreement.
When unions practice high participation negotiations, they win contracts by relying on their fundamental source of power: workers themselves.
This approach is not new—my co-author Jane McAlevey and unions like SEIU 1199NE have long practiced high participation negotiations — but it does stand in stark contrast to the approach that the majority of unions in the United States currently take.
High participation negotiations are a way for workers to win big, even under hostile legal and political regimes—and, as another case study demonstrates, to tackle emerging issues such as the use of technology in the workplace.
High participation negotiations allowed workers at Law360 to carry momentum forward from the AG’s investigation, through a successful NLRB election, and more than two years of campaigning for a first contract.
During that time, workers spent a lot of time in negotiations sessions with Law360 management. But they were also talking to one another about what they were fighting for, keeping support strong for their contract proposals, organizing escalating workplace actions, and eventually, preparing to go on strike.
Finally, on the heels of an overwhelming strike authorization vote, Law360 workers won agreement for their first contract in December, 2018.
The contract not only memorialized the ban on non-compete agreements, which was also a condition of the AG’s settlement (allowing workers to directly enforce the ban through their own workplace grievance process), but addressed many of the underlying structural issues which had made the company’s use of non-competes so egregious.
Workers won significant raises and language prohibiting daily article quotas, and entry-level news assistants were guaranteed opportunities to advance into reporter positions. And workers secured just cause protections to guard against unfair firings.
The New York AG’s investigation of non-competes at Law360 was just the beginning of workers’ fight to address the inequality of bargaining power that allowed such agreements to proliferate in the first place. Public enforcement of New York state law helped catalyze the Law360 workers’ efforts to set and enforce their own rules at work through collective bargaining.
With some employers approaching state and local worker protections with the same calculated hostility they direct towards collective bargaining, the public officials charged with making and enforcing laws on behalf of workers should understand meaningful participation from workers as a source of strategic power.
By placing workers at the center of making and enforcing labor standards, enforcers can help ensure that bosses don’t manipulate or break the law with impunity. They just might bolster a successful union drive in the process.
PRE-ORDER ‘RULES TO LIVE BY’ RIGHT HERE.
“Rules to Win By is a book for workers, unionists, racial justice and climate campaigners, academics, policymakers and everyone who wants a more fair and democratic society.”
