Working without a Contract: A Strategy Whose Time Has Come?
When a contract expires with no prospect of a settlement, the union has three choices:
- Agree with the employer to extend the contract for a fixed or an indefinite period
- Work without a contract.
For many years, unions mostly stuck to the first two options. Working without a contract was considered a hazardous move that could cut off dues and leave the union open to decertification.
But recently, unions have been taking a closer look at the work-without-a-contract strategy. Some have changed their mantra from “no contract, no work” to “no contract, no peace.” With a helpful December 2012 Labor Board (NLRB) ruling (see below), this trend is likely to gain momentum.
Working without a contract gives a union three cards to play:
Strike without notice. Without a no-strike clause to hold it back, the union can credibly threaten to walk out without notice at the worst possible moment for the employer (except in the health care industry, where a 10-day strike notice is required).
Informational picketing can be conducted to put the employer—and its customers—in a constant state of alarm about an imminent strike. The only way the employer can escape the uncertainty is to sign a contract.
Short warning strikes. The union can call a one- or two-day “warning” or “grievance” strike. While the union must avoid a series of strikes (“intermittent strike strategies” are not protected under the National Labor Relations Act), it can usually conduct at least two short-term walkouts without risking sanctions.
Bargaining over day-to-day issues. The union will have greatly enhanced rights to bargain over day-to-day management decisions (read about workers who used this strategy at IKEA here). Contract expiration cancels any “management rights” or “zipper” provisions that allowed the employer to make unilateral changes.
Instead, the employer must give notice to the union and bargain to impasse before making any changes to assignments, workloads, work rules, or other mandatory subjects of bargaining.
If management tries to carry on as before, the union can file a stream of unfair labor practice (ULP) charges at the NLRB, forcing the employer to incur legal expenses and allowing the union to position future walkouts as ULP strikes.
Members often fear that, if the contract is allowed to expire, the employer will no longer be bound on such vital matters as seniority, contracting out, pensions, health insurance, union release time, bumping, and past practice.
For the most part, such fears are unwarranted. Labor law is clear that an employer must maintain the status quo, including both written agreements and consistent past practices—with only three exceptions, detailed below.
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If the employer cancels a valuable benefit or practice, the union can file a ULP charge at the NLRB or state labor board. These agencies can order the employer to return to the status quo and make employees whole.
There are three downsides to letting a contract expire:
Union security. After expiration, an employer can cease observing the union shop or agency shop aspects of the contract. New employees will not be required to join the union or pay dues.
Dues check-off is another matter. Until 2012, the NLRB and the courts permitted employers to halt dues collection when a contract expired—deterring many unions from pursuing a work-without-a-contract strategy. But, in a game-changing ruling involving Cleveland’s WKYC-TV, the NLRB ruled its prior policy was in error.
Now an employer must continue dues check-off during the no-contract period—in the same way it must maintain other provisions of the agreement. Employers have lost a valuable weapon.
Arbitration. An employer can refuse to arbitrate grievances filed after a contract expires, except those that concern events or rights that occurred before expiration.
Losing the right to take new matters to arbitration makes it more difficult to fight discharges and discipline. However, the union can strike or threaten to strike over such actions, and it can file ULP charges if the discipline is based on concerted activity, such as handbilling or informational picketing.
Matters bargained to impasse. Under some conditions, expiration allows an employer to implement part or all of its “last best” offer. This is not as easy as some employers assume. A final offer may not be implemented unless the parties are at a good-faith impasse on the contract as a whole. Deadlock on a single issue is not sufficient, unless the issue causes a complete breakdown in negotiations.
Acting with purpose, a union can forestall a bargaining impasse for months or longer. See the box for suggestions.
Working without a contract should not be undertaken until members have discussed the advantages and disadvantages and expressed their support. It may be the best way to convince an employer that the union is serious and a contract should be settled.
Robert M. Schwartz is a union-side labor lawyer and author. A new edition of his book on strikes and picketing will be available this year from Work Rights Press.