“It’s always a good idea when you are negotiating to compare the progress of the negotiation with your alternative–the steps you would take absent reaching an agreement. This tells you what your “walk-away” is. If you don’t do that, you are much more likely to sign an agreement that is subpar, below what is possible if you took another path.”
At one time, the rules of employment were pretty clear: the worker worked as much and as hard as demanded by the employer, the employer benefited from the intense labor, and if the worker didn’t like (or even receive) the wages, or if the hours or days imposed were harsh sand extreme, there was absolutely nothing to be done about it. But all of that changed with the advent of the Industrial Revolution when masses of laborers were suddenly in high demand to meet the burgeoning requirements of Europe’s and America’s factories, and suddenly laborers gained some leverage.
In one of the first recorded instances of an organized labor strike to face off against industry, in 1831 in Lyons, France, the uprisings by silk workers—known as the Canut Revolts—are widely regarded as the first labor strike of the Industrial Revolution. The rest, as they say, is history.
Modern Era Strikes
Interestingly enough, France was also the site of one of the most infamous and destructive strikes of the 20th Century, when, in May, 1968 far-Left anarchist students rioted against ‘capitalism, consumerism and American imperialism.’ But despite the fact that the unrest did not start off as a labor uprising, it soon morphed into one when France’s trade unions joined in via sympathy strikes, a move that essentially shut down the French economy. The ‘May ‘68’ strike eventually involved 11 million workers, which was more than 20% of the entire French population. The revolt was only quelled when the Grenelle Accords between the government, trade unions and employers reached an understanding to greatly improve workers’ rights.
In the U.S., the Great Railroad Strike of 1877 began when the railroads decided to cut wages by 10 percent and carry out massive layoffs due to an economic downturn. It is estimated that 100,000 workers nationwide joined in the strike, but in the end, the event was heralded as the beginning of the labor movement in the U.S. and a recognition that fair wages and improved working conditions could be achieved by way of strikes.
The Right to Strike
The (almost) universal right to strike was codified into U.S. law when Congress passed the National Labor Relations Act (NLRA) of 1935. Section 7 of the Act states in part: ‘Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ Included among ‘concerted activities’ are strikes. However, the Act also made clear that it is the policy of the United States to encourage collective bargaining by protecting workers’ full freedom of association. The Act further ‘protects workplace democracy’ by permitting employees at private-sector workplaces the fundamental right to seek better working conditions and to designate their representatives (i.e., unions) without fear of retaliation.
Lawful versus Unlawful Strikes
However, at the same time that the NLRA guarantees the right to strike, it also imposes limitations and restrictions on that right including, for example, at healthcare facilities. Furthermore, the lawfulness of a strike can depend upon the objective or purpose of a strike—oftentimes a major point of contention when strikes are contested by employers. Such conflicts are generally referred to the National Labor Relations Board (NLRB) for adjudication. If a strike is found to be unlawful, the ramifications for the strikers in terms of back pay and reinstatement can be severe.
CBAs: Contract or Impasse
The NLRA, as noted above, also provides the right to collective bargaining with an employer. Notably, both the union and management must negotiate in good faith as to hours, wages, and other terms of employment. Generally, negotiations continue until either a contract (Collective Bargaining Agreement) or an impasse is reached. If negotiations, in fact, reach an impasse, the employer has the right to impose terms and conditions as long as it offers them to the union before an impasse is reached. Once a contract has been reached, neither party may deviate from its terms without the other party’s consent (except in extraordinary circumstances), but if a contract expires before the following contract has been signed, the terms of the previous contract are, of course also deemed expired, except as to no-strike/no-lockout and arbitration clauses.
The Role of the Attorney in CBA Negotiation
Collective bargaining—as the name implies—is the negotiation of terms and conditions on behalf of anywhere from dozens to tens of thousands of workers at a time. Certainly, such a negotiating process is complex, demands can range from reasonable to extreme, and representatives from both sides must come to the table highly prepared. Although there are both union and management representatives officially in attendance at such negotiations, both sides will be further represented by counsel or, as is more likely, teams of attorneys on both sides when the union is industry-wide, and the employer is a major industry.
Legal experts have identified some rather bedrock steps that tend to be a part of almost all CBA negotiation processes as follows:
- Identification of the primary issues, grievances, and demands;
- Coming to a tentative agreement to be brought back to the respective clients;
- Ratification (acceptance) by union members via a vote-up, vote-down procedure;
- CBA administration whereby adherence to and performance of the CBA is monitored.
A Realtime Strike/CBA Matter
For the first time in nearly 15 years, the more than 11,000 members of the Writers Guild of America (WGA) went on strike on May 2, 2023. 98% of WGA members voted for the strike as a means to resolve such issues as better wages (an additional $429 million annually, to be exact, with the Alliance of Motion Picture and Television Producers (AMPTP) countering with an offer of $86 million…), streaming residuals, term of employment, and—for a first among union strikes—safeguards against AI encroachment over human creativity. Although there is no stopping AI from playing an increasingly dominating role in most industries, the creativity-dependent element that defines WGA workers’ livelihoods is particularly vulnerable to AI inroads.
In many respects, how the AI issue plays out in the course of the WGA CBA negotiations may very well serve as a bellwether for other industries threatened by the rapid advancement of AI.
Executive Summary
The Issue
What are some of the issues surrounding labor strikes and CBA negotiations?
The Gravamen
The right of labor to strike—in most cases—is embedded in U.S. law via the NLRA.
The Path Forward
Engaging in collective bargaining is not only encouraged under the NLRA but also serves the best interests of both labor and management.
Action
Familiarity with NLRA:
Significant rights—as well as limitations—are codified in the NLRA, and therefore the lawyer looking to represent either side should start with a comprehensive working knowledge of the Act.
Define the Goals:
Preparation for collective bargaining means first crystalizing the issues, grievances, and demands so that the respective goals of the parties are well-defined from the onset.
Ramifications of the Impasse:
The inability of the sides to reach a CBA is highly undesirable and can have significant adverse effects on labor.
21st Century Issues:
Although AI is one obvious concern for labor, as technology advances, other such threats will likely come to the fore, and those should be anticipated when hammering out the CBA.
Further readings:
- https://www.nlrb.gov/strikes
- https://www.thebalancemoney.com/how-the-collective-bargaining-process-works-5071952
- https://uk.practicallaw.thomsonreuters.com/4-558-5706?transitionType=Default&contextData=(sc.Default)&firstPage=true
- https://www.epi.org/publication/2022-work-stoppages/
- https://www.ilo.org/empent/areas/business-helpdesk/faqs/WCMS_DOC_ENT_HLP_CB_FAQ_EN/lang–en/index.htm
