Bargaining Between Contracts:

“Continuous Bargaining” on Health and Safety

A stronger union model would treat every discussion between labor and management as bargaining, no matter whether it is called a team meeting, problem-solving session, [or] steering committee meeting… It would insist that the union be notified about change in advance and be involved in any discussions of specific changes in technology and work organization. It would be Continuous Bargaining.
University of Massachusetts Labor Extension Program

Many people think of bargaining as something that happens every several years and results in a collective bargaining agreement that lasts for several more years. The purpose of the bargaining strategy at contract time is to build power so that the union is in the strongest position to win its demands. Once the collective bargaining agreement has been signed, the strategies the union has used to build power at contract time often get put aside until it’s time to negotiate the next collective agreement.

But no contract can solve all the health and safety problems at the workplace, and unions need to be building power all the time, not just at contract time. To deal with new issues that arise, unions can and should bargain with the employer whenever there are new and serious issues that affect workers. This is particularly true around health and safety which often cannot, and should not, wait months or years to be addressed. Employers are constantly changing various working conditions during the life of the collective bargaining agreement – bringing in new technologies and work processes, changing how work is organized, introducing new management programs and policies. These are changes that can impact health and safety conditions.

When management introduces changes mid-contract that can harm workers, unions can organize campaigns aimed at stopping harmful changes and actually improving conditions, including health and safety. Mid-contract campaigns can build power using the exact same elements that are used in contract campaigns: developing proposals and demands, research and information-gathering, communicating with and involving members, and identifying and exercising leverage. Instead of putting away tools used at contract time that help build union power to win a good contract, use these similar tools all of the time to prevent harmful changes to working conditions, make improvements, and keep building union power.

This strategy for taking what unions know builds power at contract time and using it when needed at any time is called “continuous bargaining.” In a continuous bargaining approach, unions develop campaigns that build the union’s power to prevent harmful changes and promote healthful ones. And they prepare for that role in ways that look similar to how a union prepares at contract time, including meeting independently of management, developing a strategy in conjunction with other union leaders, and building a campaign.

The COVID-19 pandemic, which created new and life-threatening risks for workers, serves as an important example of how continuous bargaining over health and safety issues can be critical for unions when conditions change in ways that could not have been predicted during previous contract negotiations. During the first two years of the pandemic, unions bargained mid-contract over when and whether their members would return to work, as well as new health and safety protections needed. These included engineering controls like adequate ventilation; administrative controls like cleaning protocols, notification of exposure, testing, and social distancing; and personal protective equipment (PPE) such as masks.

Below are tools to leverage the collective bargaining power of the membership using a continuous bargaining approach to health and safety.

Tools for Continuous Bargaining

You can use many of the tools described in Preparing for Bargaining to support continuous bargaining between contracts, including Tips to include health and safety in the contract campaign, Activities to find out about member issues and existing hazards, and Steps to set your health and safety priorities.

Below are four additional tools to help unions address health and safety issues between contracts: worker health and safety committees, OSHA complaints, contract enforcement, and communication and education.

Worker Health and Safety Committees

During our hotel organizing campaign, we found that a worker health and safety committee can really get something concrete done. On their own initiative, they collected evidence showing how increased workloads were actually making the housekeepers sick. The workers on the committee also played key roles in figuring out what actions to take around this issue during the campaign. Their leadership and voice got stronger through this work. They were very visible when we held informational pickets. They spoke out at community hearings about their working conditions. They all learned a lot about health and safety, and about creative ways to get changes made.
Hotel Employees/Restaurant Employees (HERE) union organizer

Worker health and safety committees can be an important tool to bargain over issues between contracts. Worker health and safety committees can be empowered by the union to negotiate directly with the employer about specific hazardous situations, raise issues in informal discussions, or advise union leaders on health and safety issues, including those addressed through grievances. Union committees may have a recognized status under the collective bargaining contract which may give them, for example, the contractual right to enter and inspect the workplace, obtain employer records not otherwise available by law, or get paid release time for their activities (see Union Role).

It’s important to note that a worker health and safety committee is different from a labor-management committee. Labor-management committees can provide a useful forum to work together with management, but there is an advantage in having a worker or union committee that is independent of management, as it allows workers to choose their own issues and solutions. They can freely discuss health and safety problems, and act to solve them. Sometimes members of a union committee also participate as a group on a labor-management committee.

Some specific activities that worker health and safety committees can engage in to support a continuous bargaining approach:

Hold regularly scheduled meetings to discuss hazards, proposed solutions, and action plans.
Train committee members and other union members.
Identify hazards in the workplace through tools such as worker surveys and inspections.
Investigate reports of incidents, near misses, injuries, and illnesses.
Evaluate and monitor the employer’s safety plan and its implementation.
Request and analyze health and safety information which the employer must provide by law or even request additional information.
Locate other sources of health and safety information outside the workplace, and seek help from resources such as universities and university-based programs (including LOHP), occupational health clinics, industrial hygiene professionals, and local Committees for Occupational Safety and Health (or “COSH” groups).
Educate co-workers, and listen to and represent their viewpoints and concerns.
Recommend ways to correct unsafe conditions and develop strategies to get the employer to implement those recommendations.
Meet with the employer regularly about health and safety issues.
Build alliances with sympathetic community groups and public officials to help put pressure on the employer when needed.
Make complaints to OSHA and other regulatory agencies, and follow up throughout the complaint process to ensure an effective investigation.
Seek public support for health and safety issues through rallies, special events, media coverage, and other means.
Recruit and train new committee members on an ongoing basis.
Celebrate “wins” and build on success.

See Form a Health and Safety Committee for more useful tips for an effective worker health and safety committee.

OSHA Complaints

One of our janitors found that a chemical had spilled from a broken bottle in a lab she was cleaning. She got a rash on her hand. The bottle wasn’t labeled and she had no idea what the chemical was. We approached the employer but got no response. So our organizing committee filed an OSHA complaint. OSHA cited the employer for not having labels and data sheets for the chemicals. All the janitors were very impressed with their success. The employer had to post the citation on the bulletin board and start a hazard communication program.
American Federation of State and County Municipal Employees (AFSCME) union organizer

OSHA complaints can be an effective tool to bargain with the employer over health and safety issues between contracts, and can also support effective contract enforcement. This is because:

The threat of an OSHA inspection can be enough to pressure an employer to negotiate over a health and safety issue or to resolve it.
If OSHA conducts an inspection, a union representative has the right to accompany OSHA inspectors, giving the union an opportunity to identify hazards and contract violations.
The union has a right to participate in an opening and closing conference with the OSHA inspector.
If OSHA finds violations, the union can negotiate improvements as part of the settlement agreement between OSHA and the employer.

It is important to remember that an OSHA complaint is not a magic bullet. This is because:

The OSHA complaint process takes time. There may be long delays for the inspection to happen, and then further waiting if the employer appeals the OSHA citations. Meanwhile, if nothing changes in the workplace, workers may get discouraged.
While union representatives have the right to participate in many aspects of the OSHA complaint process, the union does not have the final say about what Cal/OSHA decides. It is OSHA alone that conducts the inspection, evaluates the evidence and testimony it collects, and determines what, if any, citations are issued.
There may not be OSHA standards that are specific enough to be helpful to address the issue at hand.
Finally, if an OSHA complaint is filed by union staff without involving the workers who are affected, workers don’t know what the union is doing, and this increases the gulf between the union and the workers. A complaint made this way won’t build participation, and it probably won’t be as successful in solving the health and safety problem either, as workers will not be involved in identifying the problem and following up on the needed changes.

For these reasons, OSHA complaints are most effective when part of a health and safety campaign that uses many forms of leverage, the most important being member participation and collective action, such as petitions and delegations. Here are some steps to integrate an OSHA complaint into a larger collective campaign that involves members:

Identify the problems: Gather workers to identify and document hazards and concerns, using the tools found in Activities to identify member issues and concerns, including surveys, body maps, workplace hazard maps, past grievances and OSHA complaints, Safety Data Sheets and information about chemicals, and OSHA Log 300 reports.

Prioritize: Involve workers in prioritizing issues.

Approach the employer: Meet with management directly before filing a complaint. For example, unions can:
- Form a group of workers to meet with management
- Write and submit a petition with the list of issues and demands
- Tell management that if there is no resolution, the union may contact OSHA

File an OSHA complaint: If there is no resolution and you do file a complaint, it’s helpful to make this a collective process. Workers can be involved in all the steps of filing the complaint, and then talk to inspectors once the investigation starts. The union can also play an important role in helping document the issues, contacting OSHA inspectors and area managers, arranging for inspectors to talk to workers outside the workplace, arranging for translation and interpretation if necessary, and ensuring the complaint is handled in a timely manner.

Continue to organize: Publicize the complaint and organize workers to keep pressure on the employer to address the issues. Don’t wait for OSHA’s decision or allow OSHA to set your timeline. View the complaint as one part of your health and safety campaign that can help to convince the employer to negotiate with you and fix the issues.

In summary, going to OSHA works best as part of a planned campaign with many steps that actively involve and mobilize members.

See Use Your OSHA Rights for a more detailed description of this process.

Contract Enforcement

In addition to organizing around new health and safety issues, you will need to actively enforce the contract language that you have won in your contract. Contract enforcement is itself a form of bargaining, as the union can negotiate with the employer over grievance settlements. A common adage in unions is: “The contract is only as good as our ability to enforce it.” While getting management to comply with agreed upon health and safety language can be difficult, it can provide more direct and prompt resolution than relying on government agencies to enforce health and safety laws.

Workers, both union members and non-members, can be mobilized to enforce new health and safety provisions in the last contract, as well as to preserve the language won in previous contracts. Thus, contract enforcement can be an important tool both to advance health and safety and to build worker participation and leadership.

Here are some tips to effectively enforce health and safety provisions of the contract.

Use the Grievance Process to Enforce the Contract

Many unions find that grievances should not be the only or even primary method of resolving contract violations, because the formal process can mean waiting months for issues to be addressed and it does not by itself leverage the power of the union membership. But as one tactic, grievances can be an important tool to pressure management to resolve issues. Grievances are a form of bargaining, as the union and management negotiate over the terms of grievance settlements.

If workers or the union believe that management has violated a health and safety provision in the agreement, file a grievance. Remember that if there is a “general duty” clause in the contract, any health and safety issue is potentially grievable if it can’t be resolved another way.

When preparing a grievance:

Although an individual worker can file a grievance, look for patterns and give priority to situations that affect a larger group. Try to bring group grievances and mobilize worker support.
Describe the problem clearly. Do some research to find out exactly what’s been happening and who is affected.
Identify the specific contract clause that has been violated. If the contract incorporates OSHA standards, identify the specific standards that apply.
Attach any documentation you have about the problem.
Ask for effective remedies.

Encourage Worker Involvement

As the grievance proceeds, remember that your strength is the union membership. Workers who are impacted or potentially impacted by the problem should be invited to participate in all stages of the process. It’s important to educate and inform members through regular communication, such as flyers and newsletter articles. “Update” meetings allow people to ask questions, provide direction, and give an opportunity to recruit more active members. Some unions conduct public campaigns around grievances, which may include wearing buttons or t-shirts with a particular message to show support, going to the media, and/or contacting community allies.

Build Leadership Skills

Important skills can be developed through handling grievances. Members and health and safety committee members should take as active a role as possible, including helping to present your case to the arbitrator. It’s good training and will help your union develop a pool of experienced people. Don’t ask the “experts” to do it all!

Use Direct Action

Direct action can supplement filing a grievance. In direct action, members engage in concerted activity ranging from a petition to a march on the boss. Grievances can take months or even years to be addressed; the strength of collective action is that it puts pressure on management to address the issue right away. Members can also see their power when they are the ones who plan and implement the action.

Prepare for Arbitration

If your grievance eventually goes to arbitration, you may need help from an attorney or outside health and safety expert. Some unions bring in specialists in particular health and safety issues as expert witnesses. To find someone who can assist you, ask your union’s health and safety department or staff person if there is one, a university program, or a local “COSH” group, but don’t put the whole case in outside hands. Remember that your committee members and co-workers should be encouraged to learn how to prepare and present their arguments.

Make Sure the Employer Implements the Remedy

If you are able to resolve the problem through the grievance procedure, monitor the employer’s progress in implementing the agreed-upon remedies.

Communication and Education

Strong communication and education programs within the union are essential for addressing health and safety issues between contracts. If members are unaware of their rights under the contract, they won’t know when they see a violation. If they are not trained on how to get together with their coworkers to address issues with management, they may know their rights but be afraid to exercise them. And if there is not an effective two-way communication system in the union (so that there is a flow of information both from leadership to members and from members to leadership), union leaders won’t know about problems when they are happening.

Alternatively, if members are aware of their rights under the contract and have experience exercising them, and are in regular communication with each other and their union leadership, they will be better equipped to take action around health and safety and to inform union leaders about emerging issues. Here are some basic steps a union can take to ensure a well-informed and well-equipped membership:

Train members on their rights under the union contract. The contract should be widely available and understood by members.
Provide ongoing education for members on how to address contract violations as well as other issues in their workplace (see “Training for Action,” below). Look to address health and safety issues directly between workers and management, when possible. Address issues at the “lowest” level – with the affected workers and supervisor. However, if an issue is not resolved, be ready to move up the chain of command within management and to involve more workers.
Have a strong steward or other worker representative network that has a system to find out about and collectively address worker concerns. Some unions create stewards’ councils that regularly discuss and problem-solve about issues happening at their sites.
Have regular membership meetings where members can share issues and problem-solve. If the workplace has different departments, this should happen at each one so that members have a space to discuss issues directly relevant to them.
Consider the formal grievance procedure a tool to help enforce health and safety contract provisions, but not your primary method of contract enforcement.

See Training for Action for more tips on building an effective health and safety training program in the union.

In Summary…

Remember that the time between contracts is a time for action. Whether bargaining over new issues that arise or enforcing existing contract language, you can think of your work to address health and safety issues between contracts the same way as during formal bargaining—as an opportunity for organizing members and building power in the union, while making the workplace safer at the same time.

Stories From the Front Lines: Laundry Workers’ Committee Responds to Boiler Explosion

UNITE (Union of Needletrades, Industrial and Textile Employees, what is now UNITE HERE) found that health and safety can be a powerful way to activate and energize union members. The union’s worker committees successfully took on OSHA issues at a chain of industrial laundries serving hospitals and other health care institutions.

There had just been a major boiler explosion at one of the shops. No one was hurt, but the explosion blew out the windows in a number of cars in the parking lot. Cal/OSHA had been called after the explosion, but inspectors had not contacted the union steward to accompany them. The union asked Cal/OSHA to include them in every aspect of the investigation from that point on. The union also filed a formal Cal/OSHA complaint about some aspects of the explosion and the cleanup that followed. For example, the company had not checked for the presence of asbestos before they began the cleanup.

In this shop, there were not enough leaders to form a separate health and safety committee, so union staff worked with shop leaders on what was called a Justice Committee. The Justice Committee became involved in the Cal/OSHA complaint. Most conversations with Cal/OSHA were held on a speakerphone so everyone could hear. The Justice Committee also sent the Plant Manager a letter about their desire to designate representatives to participate in any future Cal/OSHA inspections, and to alert them about the lack of an effective alarm system in the plant. Justice Committee members were also concerned that the company would find ways to harass or fire them for breaking unwritten and unknown rules. They decided to make a request that management issue written work rules. They saw this as a way to protect themselves from reprisals.

Later, the union asked Cal/OSHA to hold the closing conference on its investigation in a park across from the laundry, during the shift change. The Justice Committee set up folding chairs in the park, made sodas available, and leafleted the plant to invite workers to come. Union staff and the committee also prepared some key questions that they believed would open Cal/OSHA’s eyes to other problems at the plant. About 70 workers showed up at the meeting. A Cal/OSHA industrial hygienist and a Cal/OSHA staff person who speaks Spanish spent over four hours answering workers’ questions and interviewing them about plant conditions.

“The important outcome was the sense of empowerment the workers in that shop now feel,” said a UNITE staff member. “Recently, when there was a problem with a natural gas smell in the shop, one of the Justice Committee members called Cal/OSHA directly for advice on how to proceed.”

Additional Resources

Challenge Unilateral Changes (Labor Notes)

Treat It As Continuous Bargaining: Dealing with the Changing Workplace (University of Massachusetts Labor Extension Program)

Mid-Bargaining Contract Changes (United Electrical Workers Union)

A Union Steward’s Biggest Mistakes (United Electrical Workers Union)