In decades of debates about how to rebuild unions – about organizing unions versus servicing unions, about internal union democracy, and about top-down versus bottom-up unions – little has been written about the process of collective-bargaining itself.
JANE MCALEVEY AND ABBY LAWLOR1
…
Coming out of this round of negotiations, instead of 16,000 disciplines against our members, you will see that river broken down to a tiny stream of disciplines … We are going to make sure that in the area of sick control, employee availability … all the ways they use to beat our people down on a day-to-day basis, humiliate us, humiliate us – that fixes are put in place, real fixes … that becomes the test as to whether we are on the path to restoring our members’ dignity. … We told them that I don’t have to call a strike if you put zeros on the table. I won’t be able to prevent it … You’re not going to turn around and say that TWU was the first labor organization in the next round of bargaining that started the trend of zeros to be imposed on the labor movement. That’s not going to happen.
ROGER TOUSSAINT, speaking to activists and officers, the morning of December 15, 2002.2
∵
On December 2, 2002, with the expiration of the TWU-NYC Transit contract less than two weeks away, and the possibility of a transit strike very much on
“You view an active union,” he asserted, “as an intrusion on management rights,” and he pledged to “revers[e its] historic marginalization.” The union had “the right to be at the table not just every three years,” referring to contract bargaining rounds, “but whenever decisions are made that impact on our members.” Absent this, he threatened more of the “ambushes and hostage-taking” – disruption of transit service – that had been one marker of union activity that fall.5
For almost two years, Transit had rebuffed union efforts to mitigate harsh discipline and other forms of harassment or provide safe working conditions. It had used contractual tools and its largely unilateral control of the workplace to keep the Local bogged down in defensive struggles protecting victimized workers. Now, Toussaint insisted that Transit must change its mindset in all areas of “operational life,” including brutal and unrealistic route schedules, “employee availability” metrics used to deny requests for vacation and other contractual time off, forced overtime, and erosion of seniority rights. These were among the demands meant to give workers more control over their jobs and work and more power in the workplace. Health benefits had to be funded, contracting-out of bargaining unit work ended, and the disciplinary system radically restructured to end decades of disrespectful treatment.6
It was unlikely those radical ambitions could be achieved by the normalized standards of incremental and “responsible” bargaining that had existed
Simultaneously, however, Toussaint modulated his message with a call for labor-management partnership. “We are not trying to usurp legitimate management powers,” or “to impair your right to run the railroad,” he assured Transit’s managers, effectively downplaying union proposals which demanded just that. “We are neither advocating nor seeking a return to an inefficient Authority without rules or effective procedures.” If Local 100 was treated as an “equal partner,” so that “issues can be resolved through negotiations and discussions,” then the two parties could “work together to modernize our relationship.” These types of changes would “take us through the next years” and infuse alienated transit workers with “pride in what they are doing and a renewed commitment to the mission of the Authority … It is in all of our interests to build a strong and committed workforce.”7 Perhaps not so radical after all, compared with the blunt view of Milt Burns, director of organization of the communist-led Farm Equipment Workers: “The philosophy of our union was that management had no right to exist.”8
Class warfare or class reconciliation? The 2002 negotiations were a test that forced Local 100 to define its priorities, and also its methods. Were the negotiations just war by other means, with whatever agreement emerged at the end only marking a temporary truce between irreconcilable enemies? Or was the Local’s hope that Transit would cede enough ground to enable a basically amicable agreement which would marry the two parties as partners, and carry them, and transit workers too, into the 21st century in a spirit of better feelings, as Toussaint had suggested was a possibility? That Toussaint held out both the sword and the olive branch was indicative of Local 100’s complicated and sometimes contradictory posture in this first round of negotiations under its new leadership. Less than two years after taking office, Local 100 faced two reality checks: what should, could, and would it do to shift the balance
While the union won significant battles that fall, Transit’s strategic concessions largely preserved the existing labor-management equilibrium. The contract solved some of Local 100’s immediate problems, most notably its health benefit underfunding, but efforts to strip Transit of its “right to manage” were largely deferred in 2002, and shelved thereafter. Negotiated language made life better for transit workers in a number of important ways; but it did not “change our members’ lives and their relationship with the transportation authority,” as Toussaint asserted in its aftermath; it was not a transformative contract.9 Nor did the closed-door negotiations, or the process by which the contract was ratified and implemented thereafter, lay the groundwork for greater success in the future; just the opposite. Transit workers’ 60 percent vote for ratification – hardly different from in previous rounds of bargaining – showed general acquiescence to the agreement, but no great enthusiasm.
The mixed result was partially due to pressures arising from the economic, legal, and psychic repercussions of the World Trade Center destruction, and Taylor Law penalties prohibiting strikes. The concessions Transit made kept the union from calling for a walkout that, after all, had no certain outcome.
Yet union decisions played a part too. Local 100 did best what it had done well for the past two years: diligent preparation, round-the-clock work, creative tactics, mobilizing workers in the streets, seeing opportunities when they arose and taking advantage of them. It was an effective army. Its shortcomings were also familiar. Early efforts to build cadres of activist workers who felt they owned the contract and its process, who would return to their shops as leaders ready to carry the fight into their work locations, fizzled out. After a promising beginning, negotiations became increasingly, then extraordinarily, centralized, recapitulating the style and even much of the content of 2001’s health benefits bargaining. In the final hours of bargaining, the threat of a strike was poorly wielded, then abandoned. A few new contractual tools meant to spur a shift in shop-floor culture and enable more industrial democracy were mostly squandered in faulty implementation.
This chapter provides a granular level of detail about the processes – at the bargaining table but also off it – of a specific contract negotiation.10 It illuminates what Local 100 did right, but also how its ultimate adherence to the web
1 Goals and Priorities
Over two years, the shift in TWU-Transit and worker-manager power had been far slower than the now not-so-new union officers had hoped. They saw these negotiations, including its public and mobilizing aspects, and the threat to shut down New York’s mass transit system, as constituting a fresh start, with fewer constraints and more possibilities to exert power than during two years of useless discussions with Transit Labor Relations. The threat, and perhaps the waging, of a strike would frame and shape the bargaining process; then, new contract language would document that progress.
What was the union hoping to accomplish? One way to think about demands, suggested Andre Gorz, is between “‘things’ – wages, public amenities, pensions, etc. … dispense[d] from on high to individuals maintained in their dispersion, and impotent with respect to the process of production and relations of production,” and those that enhance “workers’ sovereign power to determine for themselves the conditions of their social participation … their capacity for self-organization and initiative … authentic democracy … real participation in the management of collective interests.”11
In practice, there were not two categories of demands, but five. Gorz’s “things” demands started with money to put in workers’ pockets and preserve their health benefits. Willie James had won a 12 percent wage increase over three years in 1999, and New Directions had called it not enough. So certainly, officers and members expected more. Fully funding health benefits would come at an enormous cost. Other “things” included a Martin Luther King, Jr. Day holiday, a hike in night and weekend differential pay, 12 sick days (up from five) for OA workers, matching the TA standard, a 24/7 childcare facility,
A second group of demands involved items that Gorz would also have called “things,” but which were meant to build solidarity among the union’s members, transforming, as Toussaint put it, “a me union … [into] a we union.”13 A Transit-funded but union-run education and training center would teach craft workers new skills for developing technology and provide new promotional paths for those in lower paid titles, while schooling members in trade unionism. Toussaint was especially adamant about winning restorative justice for those whom the previous leadership had allowed to be victimized: new hires paid a $4.15/hr “training wage,” cleaners stripped of promotional tracks to better-paid work, traffic checkers with no guarantees that any work would be offered from week to week, retirees lacking prescription benefits.
For years, many members, “had almost no expectations, so they concentrated everything on the raises,” observed division officer Anita Clinton. “But what were the givebacks for the raises? If it didn’t touch you, you just thought about the raise … it didn’t get into the marrow of union members that contracts are about more than numbers, the contracts are about protecting the unborn, the unskilled, that these are your union brothers and sisters.” On the eve of contract expiration, Toussaint claimed the membership’s attitude had changed for the better: “When we surveyed the members, one good sign of health within our organization [was] members said consistently, health benefits for retirees. That’s a sign of honor; that’s a healthy sign, rather than a selfish vote … We told them [the MTA], this is a mandate. This is not just about money.”14 As earlier with the claim that preserving health benefits was Transit’s moral obligation, the implication of “mandates” is that they fall outside normal cost accounting.
Two more categories of demands were not “things,” but neither would they directly augment “workers’ sovereign power.” The union’s slogans about
More important to the officers at the union hall than the Local’s members were efforts to increase the institutional power and reach of the union, to better allow it to intervene on behalf of its members. They wanted more access to a plethora of information, allowing them to be more vigilant. They wanted input into, and even sometimes veto power over, decisions Transit had previously made unilaterally. Bargaining unit work would be secured against contracting out and technological change. Occupational health studies would be launched, and the union would be allowed to bring its own safety experts onto transit property.
A final set of demands was meant to give workers tools to help themselves, challenge management control of production, facilitate building union power on the shop-floor, and create institutional legitimacy for shop stewards and other workplace reps. Management would be contractually bound to honor all “past practices” – an example of how a top-down reform could enshrine and protect a right won on the shop-floor. Restoration of seniority rights stripped away in 1999, and union control of overtime allocation, would limit management’s sticks and carrots. Shop-floor reps would gain a role in limiting abusive routes and schedules. They would handle all first step disciplinary grievances right in the workplace, with the member and rep facing off against a workplace supervisor (rather than a higher-level union rep dealing with a Labor Relations at a distant location). Joint agreement on safe work procedures would
To achieve these demands – not just more money, but curtailing Transit’s punitive and pervasively autocratic management culture – would test the limits of the possible. Toussaint had insisted many demands could be ceded without impacting the system’s operation, as when he told Transit’s assembled managers there was “no evidence that you need to destroy seniority in order to handle your service functions.” Of course, he knew this fell on deaf ears, as he tacitly acknowledged when he completed the sentence: “except that you have a need to keep our members under your control.”18
Barring a startling road-to-Damascus conversion experience of Transit’s managers, the union’s goals most likely could only be won by upsetting the ritualized patterns of bargaining meant to institutionalize and tame unions. Most likely, a successful strike or, at the very least, the absolute certainty a strike was imminent, causing Transit to blink, would be necessary.
The most outspoken and ambitious – or wild-eyed – officers welcomed this possibility. Less than two years off the shop-floor, they were an unusual anomaly: a “militant minority” based at the union hall. Frustrated by the lack of progress during their two years in office, they hoped that, like 1966, a strike would both implement and broadcast a shift of power within Transit, even recast labor relations in New York, or create a model for a new rise of the labor movement. These officers – the group crossed the union hall’s factional lines – aspired to make history and believed they might make it as they pleased – or at least that the potential benefits were worth the risk. “We’re not like the old Local. We’re going to do what it takes to get a good contract. We’re not going to let some law get in the way,” Executive Board member Eladio Diaz told an interviewer that fall.19
Of course, even the most militant acknowledged the difficulties that made other officers and, apparently, many members, more wary: neoliberal anti-worker ideologies were ascendant, mass movements were at an ebb, the city’s post-9/11 economy seemed a mess. Additionally, New York State’s anti-strike Taylor Law penalties were severe: monetary penalties against the union, a loss
Perhaps some of these demands might need to be pared, or abandoned? Pleading budgetary poverty in the wake of a difficult economy after 9/11, Gary Dellaverson, the MTA’s lead negotiator, would occasionally suggest he might be open to some non-economic changes. How much was this worth to the Local? Would it accept fewer “things” for better treatment, a bigger say in decision-making, more shop-floor control? And if so, what should be prioritized? What would members ultimately see as a successful contract? What would officers see as one that also constituted acceptable progress towards enhancing the union’s power? Since Toussaint increasingly kept his own counsel about his own goals and methods, officers with various perspectives imagined that his concerns were identical to theirs.
Far less discussed than goals and aspirations was the process of negotiations: the extent to which officers and members would be involved in consultation and decision-making. The conduct of bargaining might reinvigorate faltering efforts to change the culture of the union, creating more participatory habits, customs, and expectations. Or it might cement in place the more anti-democratic aspects of the union’s past that New Directions had vowed to change. Accordingly, the choices made about the scope of involvement and inclusion would prove momentous, perhaps as much as which contractual changes to prioritize.
Gary Dellaverson understood this too. If the new TWU leadership still had many questions to answer, Dellaverson was clear-eyed about what he wanted from these negotiations – contractually, but also procedurally. An experienced negotiator who had crafted much of the existing Transit-Local 100 relationship, and trusted by his two superiors – Governor George Pataki and MTA Chair Peter Kalikow knew little about the transit workplace – Dellaverson had flexibility as to his means.21 He could give this to get that, with few constraints other than the necessity to hold down the newspaper headline wage number, which would set the “pattern” for all upcoming municipal
Most important, Dellaverson sought to tame this still largely unknown leadership. In many ways, the HBT negotiations had been as unsatisfactory for the MTA as the TWU, and more perplexing.24 Local 100 had not secured more funding, but neither had it bent or broken. It had flagrantly disregarded its contractual and fiduciary obligations. Using moral claims, mass actions, and the threat of a strike, it had headed off benefit cuts. These were dangerous precedents. Yet there were also some hopeful signals. Dellaverson wanted to deal with as few people as possible and Toussaint had been willing to restrict information to a very small circle. Toussaint had entertained discussions about productivity that might be considered concessions, and which a significant slice of the membership was likely to oppose. Hoping to get rid of a big problem, Toussaint had shown some willingness to “play by the rules,” and act “pragmatically.”25
Dellaverson needed to encourage this tendency and re-bind the Local to the “web of rules.” He needed to entice the Local into “ritualized haggling over specific contract language.”26 Once that was accomplished, “the process and procedures and structure that have been worked out over a period of time can play an important role in minimizing difficulties … Even for people who like to fight, a proper procedure can channel that instinct into a right time and place.”27
the longest such relationship, there is [now] much more cooperation than there is conflict. … In other communities where that relationship is just beginning, or where there is a first contract, or first conflict, they will go through a few rounds before conflict is taken care of and they develop that mutuality of interests that generally comes about and is recognized by both sides.28
Facing a new relationship, Dellaverson needed to speed feelings of “cooperation” and “mutuality of interests.” He needed to reject union demands in creative ways that dampened expectations rather than inflaming animosity. Then, he needed to say “Yes” just enough on matters that did not fundamentally alter Transit’s control of the work and workplace to avoid provoking the Local into a strike.
2 Organizational Preparations for Negotiations
The contract negotiations which culminated in two or three frantic days in mid-December were the finale of an almost year-long process for Local 100. Customary procedures were followed, but some attempts were made to remedy what it thought was previously flawed or missing in TWU bargaining practice. Members were mobilized earlier and more often than in the past. The ideas of lower-level officers and stewards were initially solicited. Voluminous information requests produced a trove of useful data. Activist organizations and potentially friendly politicians were asked to support the union’s concerns. The Local’s message about the need for “dignity and respect” in the face of “plantation justice,” was spread by transit workers to a media captivated by the prospect of a strike and “fascinated,” according to media staffer David Katzman, that the negotiations didn’t seem to be just about money.29
The Local’s By-laws laid out procedures to prepare for, negotiate, and ratify a “Memorandum of Understanding” (MOU), the changes to its 600-page contract with the MTA. Three months before contract expiration, each division of the
Contract negotiation flow-chart, per Local 100 By-laws
A researcher might look at these requirements and judge that Local 100’s bargaining practice was highly participatory, at least among the elected officer corps. In practice, however, at least since the mid-1970s, general language negotiations were routinely conducted by just a small handful of top union officers, whose interests and concerns were often different from those in the official Contract Program. The CPC was ignored except for an initial rubber stamp of demands. Divisional negotiations often ended with a vice president agreeing to a deal opposed by the division’s officers. Bus operators voted on divisional language solely affecting conductors and vice versa, allowing concessions in one or two divisions to fund general wage or benefit improvements. Though voting patterns often suggested that workers in a particular division opposed changes negotiated in their “behalf,” that language nonetheless went into effect if the contract as a whole was approved. In general, the whole process was top-down and designed to ignore, isolate, and neutralize pockets of opposition to the wishes of the leadership. New Directions had denounced this process, and the new leadership now had a chance to change it.31
Accordingly, contract preparations began sooner and were more participatory than in anyone’s memory. Whether the union leadership had “learned” anything from the HBT secrecy fiasco or was simply reading the (figurative)
The February issue of Local 100 Express featured the front-page headline “Organizing for the TA/OA Contract Fight,” still ten months away. March’s read, “Contract Kick-off: Union Calls 4/24 Rally at MTA HQ,” and April’s “Union Power in Midtown: MTA, Governor Get Our Message,” reported on that rally, boasting of 12,000 members in attendance. A survey sent out in January focused member attention on the contract far earlier than usual and solicited for volunteers. Its 22,000 responses largely confirmed that wages and health benefits were the most important general issues, followed by retiree health coverage, pension improvements, and relief from onerous discipline, but it gave the leadership some insight into which other issues members prioritized.32 Jane McAlevey and Abby Lawlor suggest surveys like this should, where possible, be distributed by officers and stewards through in-person meetings. Discussions there would lead to a more granular understanding of sentiments, identify potential shop-floor leaders, begin the organizing for workplace actions, and boost the “willing to strike” result.33
The Local had its “own” McAlevey, though, in the person of Eddie Kay. In May, he sent Toussaint an outline of his suggested preparations. One item was to build a stronger volunteer political presence, particularly with the hope of influencing Governor George Pataki, up for re-election in the fall, to intervene in Local 100’s behalf. Kay’s roots were in SEIU 1199, which that spring utilized just such an intervention to win an advantageous contract.34
Most urgently, Kay advocated the creation of a “1000 members negotiation team – the required numbers force us to recruit, agitate, and talk to members while getting real involvement.” They would have regular meetings and be invited to “certain negotiation session[s].” All members would be encouraged
Kay’s proposal had some similarities to what is now called “open bargaining,” in which any member can attend bargaining, negotiating committees are dramatically enlarged, and sometimes private discussion (“sidebars”) between principals are restricted. Like many of the “democratic town meeting” processes, its purpose is to build members’ involvement, understanding, and confidence in their own abilities. They return to their workplaces with stories of management hubris and insensitivity, while their “insider” knowledge helps transform them into workplace leaders. Ideally, it enhances member “ownership” of the process, cutting against the service union model, making negotiations a learning and engagement opportunity.36
A more minimalist version of open bargaining – perhaps more realistic in a union of 35,000 – is the direct involvement of multiple layers of elected officers and stewards in union strategizing and decision-making. The Farm Equipment Workers’ stewards’ council did not sit at the bargaining table, but nearby, consulting on proposals. They were FE’s ear to the ground, helping national officers understand what would and would not fly among the rank-and-file. Later, they explained the new contract language to the membership.37
Most American trade union leaders are wary of all of this: most cynically, they want to keep control. But there are also real dilemmas involved in the choice of open bargaining. Constant consultation is unwieldy and slows actual bargaining. Educating and tending a cast of hundreds or thousands can divert resources and attention from bargaining. Less intuitively, a radical leadership seeking contract language facilitating long-term union-building and solidarity may find itself hindered by a membership focused on the wage rate increase and other direct effects. Still, the cost of only marshalling an army is less engagement, less participation, and less assumption of responsibility by members.
the TA has approached the table with the idea that work rule concessions would offset the cost of any wage or benefit improvements … Demands to combine jobs and eliminate long-standing union rights. Demands to transfer tasks from a higher rated title to a lower rated title. Demands for increased flexibility in assignments, both in terms of hours and in terms of location. Demands to remove work from our bargaining unit.38
The presentations emphasized that “success at the bargaining table is directly proportionate to the active support of the members for the issues being negotiated and their active involvement in the bargaining process. Look for ways to increase the Union’s POWER.”39
Officers and stewards subsequently met in their divisional groupings, and afterwards chose an “issue” meeting to attend, such as health benefits or safety. Division chairs were urged to tell attendees, “We intend to have them much more involved than they have ever been.” They were asked to be the core of an outreach network utilized by a newly created organizing committee, established to provide face-to-face information in hundreds of locations, mobilize for actions, and deal with the practical logistics of rallies and demonstrations. Participants were asked to avoid creating wish lists, but rather to focus on identifying “the problems that, day in, day out cause the members the most frustration … that have made the Union weak,” and “develop[ing] a plan of action to win what we really need.” The demands developed in June were revised and approved by the JEB in September.40
The union assembled a research team which aggregated data from Freedom of Information requests, the International TWU, the municipal unions, and reports on “best practices” elsewhere in the industry. That was compiled into statistical charts and graphs, utilized at the bargaining table, and in communications to the members and the press.42 Among the findings: productivity – passenger miles per worker – was higher than other transit systems. Bus accident rates were lower, meaning discipline for “preventable accidents” was unusually disproportionate.43 Health care funding and benefits were worse than the municipal unions and other MTA agencies. Data on contracting-out showed that in-house work was cheaper than Transit claimed.44
For the first time, the Local was able to isolate discipline by type, job title, division and geographical location, showing that discipline was disparate across divisions and within them. If discipline was supposedly for a cause, then why were workers cleaning station platforms disciplined at a rate almost three times higher than those cleaning subway cars on the same platforms and six times higher than those cleaning buses in depots?45 Moreover, within divisions, discipline varied widely, as much as seven-fold, based solely on work location – in other words, on the attitude of specific supervisors and district
All this research, or ideas about best practices, made little difference to Dellaverson. He had no epiphanies about mistaken Transit policies and procedures. The impact was substantial on the union side, though. It confirmed what officers had intuitively felt but now could prove – and show the media. It intensified their feelings of injustice. The most egregious reports were synthesized into press releases and leaflets, and helped further rouse members.48 TWU General Counsel Arthur Schwartz, among others, noted “a heightened awareness on the part of the rank and file about contract negotiations.” He observed this “created a lot of expectations.”49
3 Lots of Expectations: Bargaining Begins
The Local’s demands – 26 pages’ worth, with over 300 separate items – were formally presented to the MTA at a September 20 meeting it called “Contract 2002 Kickoff,” attended by hundreds of union officers and staff.50 It was
Toussaint’s Kickoff presentation mingled economic and work life demands, and the union’s perspective on how the bargaining process should work. Although he did call for a “constructive partnership,” that turn-of-phrase was easily ignored in an otherwise fiery speech. He noted the wide pay disparities between transit workers and comparable titles on the MTA’s MetroNorth and LIRR units, and the inferior health care funding. He declared, “We will not victimize or sacrifice smaller or weaker titles,” disavowing the common Local 100 practice of partially funding the general wage package through divisional concessions. He emphasized the disciplinary and safety concerns the Local had been raising for 20 months. Then he warned, “We will not make progress towards an agreement if the MTA only sends Labor Relations functionaries to run negotiations in major Operating Departments. We will take this as failing to bargain in good faith and a sign of disrespect for the Union.”52
The kickoff was an extraordinarily dramatic moment … management was totally unprepared … The union staff and officer core were greatly invigorated by the contract opening … The feeling that ‘yes, we can do this.’ The contract opening showed that we knew what we were talking about and were capable of going through the very complex and high-level negotiations that a contract at this level requires … The media got it … Because the message resonated in our ranks, people were able to stay on message … There were television trucks outside the hotel … and people kept saying ‘dignity and respect.’54
That theme was pounded home when Toussaint asked everyone in the room who had been disciplined by Transit to stand, and, in an emotional moment, virtually every officer did so – a counter to Transit’s argument that most discipline was aimed at a small number of bad apples.
Yet despite Toussaint’s Kickoff warning, the lead Transit negotiator at each bargaining table was a Labor Relations official who had spent years saying “No” in the most abrasive and heavy-handed way possible; production managers either were absent or sat silently alongside. Virtually all committees reported that Transit was not willing to even discuss union concerns.55 When Toussaint complained to Dellaverson that Ralph Agritelley had Transit’s head of System Safety “under a gag order,” preventing “safety people from talking to each other,” Dellaverson responded, “My expectation is that you will [always] see a Labor Relations person. If it could always be Ralph, it would be.”56 Schermerhorn later reasoned that decision was based on Transit’s perception that
Divisional negotiations proved particularly difficult, despite – to Transit, because of – the importance of divisional contract language to daily work life. It set procedures for job picks, established how many workers could take vacation during prime summer months, be home for Thanksgiving dinner, or have their “weekend” on the weekend. Divisional language established break times, procedures if a worker’s route ran late, how overtime was allocated, and the value, extent, and utilization of seniority rights. The contract’s 174 single-space pages of divisional rules were where the struggle over control of the workplace was most directly chronicled.
Yet substantial changes in divisional rules and language that made workers’ lives better were rare. Traditionally, Transit had demanded that all changes in divisional language be “revenue neutral,” with any union gains paid for by work rule concessions of equal monetary value. Meanwhile, union leaders focused on Local-wide issues and money items that showed up in paychecks, rather than work conditions that, because of the vast diversity of job titles and work conditions, had to be torturously and individually negotiated.58 Transit workers had given up on the significance of divisional changes too. Asked to rank their contract priorities, over three-quarters of the 22,000 respondents ranked divisional issues 8th or lower out of 12 categories, and half ranked them 10th or lower.59
The RTO committee’s experience was typically frustrating. They wanted to make it easier to get a day off by enabling “swaps” of shifts or RDOs between willing workers, a common practice in the bus divisions. In early December, after nine meetings and no progress, Schermerhorn, one of the Local’s leading advocates of the democratic town meeting, left his committee behind, met solo with his operational counterpart, and reached a handshake agreement. Then,
Kruger and Schmidt call collective bargaining a combination of “raw power … [and] rational problem solving.”61 For two years, though, RTO had not shown management they could effectively and systematically create major production disruptions during negotiations in order to move their issues.62 So, Schermerhorn decided his best course of action was to “reason” with his Transit equivalent. He argued that swaps would result in fewer sick calls and therefore better organization of the workload – a win-win solution to a problem.63 Yet, contract bargaining is said to be “distributive” – neither side ever “gives” the other anything. Every change must be wrested away, bought, or sold, for a price.64 RTO’s difficulty was an example of this type of bargaining: even no-cost items must be “paid for” if they have a value to the other side.
So, Transit won on method, repulsing the Local’s attempt at more participatory bargaining, even when it agreed to a deal – on which it then reneged! Ultimately, more or less the same agreement was restored on December 14, but without Schermerhorn or a single officer from RTO present.
Certainly, it was Dellaverson’s intent all along to concentrate all bargaining within the smallest circle possible, but Toussaint increasingly seemed to favor this path as well, recapitulating 2001’s HBT bargaining. Early on, the chairs of all the committees met regularly, to exchange experience, solicit advice, and coordinate when demands might have distinct ramifications for the highly specific working conditions of different sections of the workforce.65 The leadership group’s attendees – Kagan, Meginniss, and Schwartz – gained at least a passing familiarity with every issue, compensating later, to a certain extent, for not having the real experts at the bargaining table. But Toussaint’s absence was an early indication of his willingness to abandon the institutional structures the union had created to share information, opinions, and decision-making, and go it nearly, and then wholly, alone. It also foreclosed the sharing of views and priorities between the lead negotiator and rest of the formal Negotiating Committee.
With By-law mandates on participation, advice, and consultation ignored, most of the union’s top officers lost their place in deliberations on strategy and consequences. The Contract Policy and Negotiating Committees were now wholly defunct, their members excluded from providing advice about appropriate priorities and trade-offs among the union’s goals. Toussaint’s braintrust was increasingly composed of outsiders rather than transit workers. A number of political heavyweights, most notably Basil Paterson, Bill Lynch, and Ken Sunshine, had been hired for outreach, lobbying, and counsel.70 These were people who had spent their professional lives sometimes shaking their fists but nonetheless working within and through the system and its rules. One day in early December, I looked around Toussaint’s office during a strategy meeting of more than a dozen people and saw that he and I were the only transit workers in the room.
The web is a set of rules, but it also has its own style of rituals and expectations. One is its customary method of bargaining: a small circle of principals
In September 2002, the long-time labor journalist Richard Steier, no pie-in-the sky romantic, had noted “Toussaint’s determination to transform … the city labor movement.”72 That reflected what Eddie Kay had called Toussaint’s initial “revolutionary fervor.”73 It was what fueled the expectations of both officers and the rank-and-file, who believed the contract would mark a new ascendency of Local 100.
Yet Toussaint had offered “constructive partnership” during the Kickoff, and in December said he did not intend to “usurp legitimate management powers,” an enormous, if rhetorical, concession. Whether intended or not, Dellaverson could read this, and the abandonment of participatory bargaining, as a shift toward a more “responsible” perspective and away from the dangerous class warfare conclusion to the negotiations he feared.
Although it is impossible to pinpoint the exact moment in which a transformational agenda of dramatic change turned towards one focused on specific mechanisms that would provide some relief and protection for transit workers from hostile managers, the trend-line was clear. Dellaverson might have to make some distasteful concessions. He could not wholly discount “the unpredictability of Local 100,” or “this thousand-headed monster called the membership.”74 Unforeseen off-table pressures might still upset his plans. But his actions in the coming weeks were those of an experienced negotiator who believed he was gradually turning bargaining in his favor.
4
That did not mean the ultimate deal was already baked in. Off-the-table, there was far less normality as both sides tried to exert pressure and faced unexpected problems.
The Local had not been able to build the field organization necessary to consistently disrupt service, although inspections by the union’s safety department disrupted several weekends of track work on shut-down subway lines. Leaflets urging workers to “work to rule,” i.e., to slow down, proliferated, although their effect was unclear.75 An organizing committee held dozens of “shopgate” meetings in key locations to explain the issues, Transit’s recalcitrance, and the urgent need for workers to show their power. Several were held inside work locations – this was new – with members wearing their TWU We Move New York t-shirts.76 Robo-calls (then a new phenomenon, so people answered their phones to hear Toussaint urging them to turn out for union events), and mass media advertising supplemented the monthly newspaper. A dozen “Contract 2002 Bulletins,” produced with increasing frequency, featured a calendar of upcoming actions.77
All that outreach, along with the drumbeat of the negotiations, and the expectation among transit workers that this was “their” year, swelled mobilizations in size. One large downtown rally was held on September 26. On October 15, workers poured out of their shops at lunchtime to picket Transit’s Medical Centers, in support of the union demand stripping Transit doctors of a unilateral right to decide who could work, or not.78 On October 30, the Local put 16,000 people on the street outside the MTA’s midtown headquarters, with hundreds parading across 42nd St. through Times Square from the westside Mike Quill Bus Depot to join the rally, disrupting rush hour traffic. Barred from marching to Governor Pataki’s office on Third Ave by the NYPD, the union did so anyway, creating even more disruption.79 The three-day shut-down of the 126th St. bus depot, described in Chapter 7, began the next day.
Hundreds of bus operators and mechanics march through Times Square on the way to join a local 100 rally outside MTA headquarters, October 30, 2002.
ILLUSTRATION REPRODUCTION COURTESY OF ALAN SALY
The Local developed a plethora of off-the-table activities it hoped would impact on its bargaining. It organized “Save the [$1.50] Fare” events, to negate charges that any economic gains would cause a fare increase. A “Healthcare Summit,” with Congressman John Conyers, jointly discussed the shortfalls in MTA spending on health benefits and promoted the more munificent vision of Conyers’s National Healthcare bill. A meeting of childcare organizations and activists had a similar dual purpose of exposure of inequities and aspiration.80
For its part, the MTA grew and grew its supposed budget deficit. On November 8, Dellaverson unveiled the MTA’s new budget forecast, predicting hundreds of millions of dollars of red ink, a fare hike, and service cuts, all of which would “affect headcount [the size of the TWU workforce] in a direct way.” Toussaint responded that “elections [for Governor] are now over; not surprisingly, now there are budget cuts.” Yet seconds later, he “recognize[d] they’re real.”81 Earlier, the Local had hoped to finish the negotiations before the November Gubernatorial election, believing Governor Pataki might be incentivized to put money on the table and trumpet his role in brokering a deal; now, that longshot was off the table.82 By late November, the deficit was reported as $1.1 billion; by early December, it was $2.2 billion, and by December 10, the Times had it at $2.7 billion.83
Transit deficits were a tried-and-true refrain. All the officers remembered the 1996 bargaining, when the MTA had won concessions by claiming a budget crisis, which quickly disappeared after the contract was signed.84 Yet the Local’s experts warned that this deficit was real, driven by lower tax revenues and ridership after 9/11, allowing the MTA to “position the Unions and public” for a low-cost contract.85 “Roger Toussaint is in a very difficult position,” Robert Snyder, a transit historian inclined to support union success, told the New York Times. “His group rose to power by advocating a more militant posture, yet they face a fiscal crisis and public climate that I think will not support a strike by municipal workers.”86 In 1999, Willie James had won three 4 percent wage increases, on the strength of the Clinton economic boom and the cuts in health benefit payments that now had to be fixed. New Directions had criticized that contract as inadequate. Now, worsened economic conditions, and the health
Mayor Bloomberg began to chime in too, playing the role of “bad cop.” He warned of the dire consequences of a strike – “it could even lead to deaths,” he said, while the right-wing New York Post denouncing the Local for its “radical neo-socialist jihad.”87 Bloomberg tried to mimic Mayor Giuliani’s 1999 injunction which had set extraordinary penalties against each striker for even advocating a strike, but this time the union was prepared, acted preemptively, and prevented any restraining order from going into effect.88 Toussaint denounced bullying and threats in brusque terms, also calling on elected officials to get more involved and help settle the contract. This was inevitably a contradictory message and revealed an intrinsic dilemma: how to avoid seeming the villain, the Grinch who would steal Christmas, while keeping the union’s threat palpable.89
Then, on two successive days in late November, two veteran workers were hit and killed by trains while working without “flaggers,” whose job is to signal oncoming trains to slow down – considered unproductive work by Transit.90 For transit workers, this was a stunning blow – two in two days! As callous as it seemed, Dave Katzman recalled, the Local had to put grief aside and use the tragedy as “an opportunity to bring home the issue of working conditions, management’s negligence of safety and what this reflected about the culture in Transit.”91
Toussaint announced a unilateral slowdown of trains. “Assume that there are people walking on the tracks at all times and the tracks aren’t properly flagged … Move your train with an ability to stop at any time,” the Post reported
Responding to the deaths of two workers, the union announced safety slowdowns
ILLUSTRATION REPRODUCTION COURTESY OF TAMIMENT LIBRARY/ROBERT F. WAGNER LABOR ARCHIVES, NEW YORK UNIVERSITY
Katzman later noted that though “we couldn’t actually produce a slowdown through organized means,” management acted swiftly to take the wind out of the union’s sails and preclude the possibility of massive service disruptions. It removed all workers from the tracks for 72 hours, then unilaterally proclaimed new safety standards. For his part, Toussaint warned that his workers were now demanding “sweeping changes in safety procedures.”93 The two deaths made it easier for the Union to frame even its maximum safety demands as legitimate, a potential strike issue – Dellaverson clearly saw this too – and so the priority the Local gave them increased, as did the aggressiveness and specificity with which it pursued them.
Ultimately, the deaths – and the insistence with which Toussaint, a former trackworker, pursued this issue – shook Dellaverson off his game plan, leading to a large concession that ceded some management control of the job: a worker or crew can declare a job unsafe, stopping it without fear of suspension or discipline until, at some level in the union-management hierarchy, the problem is resolved. For the particular circumstances in which it applies, it is an unusual repudiation of the pernicious doctrine of “comply and grieve.” In later interviews, it was the 2002 gain most commonly cited, and even so harsh a critic of Toussaint as Steve Downs called this contract provision a “remarkable accomplishment.”94 Whether the union could have achieved this victory without the tragedy of the two deaths is unclear, but seizing the opportunity born of circumstance is a mark of awareness and tenacity; these were characteristics
Local 100 Express, July 2003 explained the new safety provisions to members
ILLUSTRATION REPRODUCTION COURTESY OF TAMIMENT LIBRARY/ROBERT F. WAGNER LABOR ARCHIVES, NEW YORK UNIVERSITY
On the union side, though, cohesion and preparations for its final push were threatened by an internal revolt. In early November, a group of Private Lines workers, along with their VP, the last holdover from the previous officer corps, petitioned the International TWU for a vote to split off from Local 100. They hoped the union would be distracted by contract negotiations and unable to wage a strong anti-secession campaign. The International might have ignored the petition, or postponed action on it until January. Instead, intensifying the Hall-Toussaint war, it set a vote for early December. In the end, almost 70 percent of workers voted to remain in Local 100.96 But for three weeks, Toussaint’s attention – and some of the organizing machinery of the Local – was partially diverted from Transit negotiations. For almost a month, large-scale union actions abated, and when the main table sub-committees began to meet, Toussaint was sometimes absent, off firefighting the insurrection.
intended … to influence the policy of a government by intimidation or coercion. … [which] damages, or otherwise impairs the operation of a mass transportation signal system … [or] interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating or maintaining a mass transportation vehicle … 97
Today, it seems absurd that a transit strike might be considered a “terrorist” act, with penalties ranging up to 20 years in jail. But in 2002, “there was real
Here is a classic dilemma of normalized bargaining, in which union leaders rationalize restricting the flow of information on a “need-to-know” basis. During the previous year’s HBT negotiations, “bus consolidation” was kept secret to provide political space for Toussaint to engage in extended negotiations. The Patriot Act memo was similarly withheld, presumably to avoid showing the MTA a weak card in the union’s hand. But secrecy also prevented the leadership from publicly announcing it would not be intimidated by this legally questionable theory – a preemptive equivalent of Mike Quill tearing up injunctions and announcing “go to hell!” during the 1966 strike, with Toussaint playing the role of potential martyr willing to risk all for his members. Concealing information meant the MTA understood the Local’s problems and inclinations better than the members. Toussaint wanted an army at his back, but without the town meeting beforehand.100
In the first week of December, each side ramped up its pressure further, as the MTA finally issued its own contract demands and the Local held mass meetings and took strike votes. The MTA proposed a three-year wage freeze, with possible increases in the second and third years paid for by productivity
For the union, just as provocative as the MTA’s “no money” stance were its responses on discipline and sick leave, where Dellaverson had earlier suggested he would look for ways to create a more humane system. Instead, he produced a Labor Relations wish-list – their fax stamp was still affixed up top when the proposal was handed to the union. Their demands made it easier to climb the disciplinary ladder toward firing, and expanded Transit’s use of pre-disciplinary suspensions. It exempted some workers from Transit’s routine sick harassment procedures, but simultaneously made it easier to land on the much-hated sick leave control list. A disciplinary offense called “chronic absenteeism” would bundle together virtually every way in which a worker might miss all or part of their scheduled shift. Its most pernicious aspect was its subjectivity: no specific metric triggered a charge.103 In the moment it seemed Dellaverson wanted to provoke a strike. All negotiations then broke off for six days, until December 11, five days before the expiration of the contract.
In the interim, the culmination of the Local’s mobilization efforts came on December 7, when 13,000 members attended either a morning or afternoon meeting at the Javits Convention Center. After departmental reports on the lack of progress in their negotiations, and a moment of silence for its newly dead brothers, Toussaint responded to the MTA proposals of just two days earlier. “They can take their zeros and stick them where the sun don’t shine,” he roared at the end. “This proposal is a provocation, an outrage, it’s meant to provoke a strike, not prevent one.” Mirroring Mike Quill, he tore up the MTA demands, called for a vote on whether to strike, and received one by unanimous acclamation at both meetings. Outside, reporting on the resolution to the press, “he was surrounded by Local 100 members chanting, ‘Strike! Strike! Strike!’”
Recalling that meeting, some interviewees were almost poetically wistful. Executive Board member JP Patafio said, “Tremendous enthusiasm left that hall … People were really angry at the Transit Authority and I think they felt that … we were going to deliver on that anger.”105 Alan Saly remembered “a really palpable feeling of momentum … it was kind of a throwback to the time where labor had a seat in American discourse … As they say in the Bible, your brother’s blood cries out from the ground, something really manifestly wrong was happening, and it had to be set right.”106
How well you do in bargaining has more to do with how much power you have than how skilled a negotiator you are. Bargaining takes place as much in the field as at the table … demonstrate your power to influence management’s bargaining goals. Success at the bargaining table is directly proportional to the active support of the members for the issues being negotiated and their active involvement in the bargaining process.107
While there had been little “active involvement in the bargaining process,” Javits was the final powerful exercise and demonstration of “active support of the members for the issues being negotiated.” However correctly Dellaverson thought he had “read” Toussaint, he must have also been nervous about the consequences if he had gotten it wrong.
5 Down from the Pinnacle: the 2002 Contract
On Friday, December 13, negotiations transferred to a suite of rooms at New York’s Grand Hyatt hotel. The contract was set to expire at midnight Sunday/Monday, and Local 100 was publicly warning it would return to its old tradition of “no contract, no work,” but Toussaint had already anticipated the possibility of a temporary delay. He had told me, privately, that he would never call a strike before a bank of TV cameras, but only in front of transit workers. The Local had a permit for a march on Monday December 16 from Transit HQ, across the Brooklyn Bridge, to a rally near City Hall at 5 PM. Presumably, that was where a strike would be announced, to go into effect some hours later. And that made strategic sense, giving Toussaint three separate deadlines to squeeze the MTA: in the hours before the actual expiration, again right before the rally, and in the hours after a strike had been called, but before the morning rush hour began.109
Thus far, nothing had been settled, even tentatively, and the list of union imperatives remained long, but there was a change in tone when negotiations resumed on December 11. For the first time, this meeting actually looked like “regular” incremental negotiations, albeit with the two parties far apart. A week before, the union had denounced Dellaverson’s proposals. Now,
When the two parties re-convened at the hotel beginning on the afternoon of Friday, December 13, the first tentative understandings on some minor union demands emerged. On Saturday, language was traded on various major subjects, narrowing differences, and the first agreements on mitigating the disciplinary system were reached.111
That afternoon, virtually all the divisional issues were wrapped up in one clean sweep, but in a process as far from earlier efforts at officer inclusion and By-laws’ mandates as was possible. That morning, I rounded up each division committee in turn and sat them down with Tom Kennedy, a Local 100 lawyer. What do you need? we asked them, paring down their proposals. Months earlier, the union had rejected the MTA’s demand for “drop dead” dates after which all divisional negotiations would go to the main table. Now, de facto, that is what happened. Kennedy made lists and negotiated alone with TA President Larry Reuter. None of the excluded officers, even those already feuding with Toussaint, protested or demanded to remain at the bargaining table.112
Indicative of what was left undone was the disappointing result in Car Equipment, where New Directions officers had pledged to restore seniority shape-up of work, a major concession of the 1999 contract that made the exercise of shop-floor power far more difficult. Even Sonny Hall could see that Transit was using its control of job assignments “as punishments to those who would stand up for their rights and to harass and intimidate elected section union officers.” That harassment discouraged many shop stewards and union committees from fighting on the shop-floor, fearing personal victimization, lamented section officer Louis Russo, Jr.114
Here was a case where a top-down change was a necessary prior condition to building and sustaining bottom-up power. Tom Doherty was part of the Car Equipment negotiating committee. “We kind of thought we might get some of that pick right back. [But] I remember bumping into [Transit CED boss] Percibelli before one of those negotiating meetings and he says, ‘man, you ain’t ever getting those seniority rights back. You can just forget it. It’s not happening.’”
Since I came out of Car Equipment, and supposedly was keeping tabs on all bargaining, the failure to push its seniority issue into the final main table talks was primarily my fault. That failure – losing track of my own division’s key issue – can mostly be ascribed to how many hot-button issues were still unresolved with just over 36 hours until contract expiration: i.e., virtually everything.116 When the MTA began to move late Saturday, 29 pages of small-print agreements came together in a little more than a day. In three hours on Sunday evening alone: extensive information on accidents and injuries, project costing, new technology implementation, and farming out plans – yes, yes, yes, yes. Informing the union of investigations of members and conceding its right to represent – yes. Eliminate the overtime cap – no. Monthly presidential meetings – yes. Use of reimbursable sick time until workers’ compensation payments kicked in – yes. End the use of welfare recipients to do some car cleaning work – no. Some opportunity for cleaners to promote to higher paid titles – yes. Payments to families of workers who died on the job – yes. Two dozen more issues were also decided in the same session.117
A veteran of many negotiations, Dellaverson had stonewalled the union for three months. A week earlier he had provoked the Local; now he took most of his demands off the table, responded to the union’s, and seemed
A good example of this incremental bargaining were the new sick leave provisions. On balance, these were a large net gain for most workers. Seventy percent of them were exempted from beakie harassment and would only need doctor’s notes for four-day sicknesses, instead of the previous three.118 Protocols to check for FMLA reasons for absence, which would preclude placement on the sick abuse list, were established. In return, the union accepted a key management premise: its “good” workers who deserved relief, were counterposed to management’s “bad” workers who would now be subject to its new “chronic absenteeism” language. By 2006, Toussaint listed the chronic absenteeism disciplinary charge as one of the union’s three “most pressing issues.”119
On the other hand, it seemed like gains on disciplinary treatment were substantive, and without cost. Cases involving pre-disciplinary suspensions would be heard by an arbitrator within 48 hours; by multiple accounts, this has been successful in limiting victimization and Transit’s charge-high-to-force-a-plea-bargain practices.120 Specific curbs on bus accident disciplines soon cut their number by two-thirds. Workplace disciplinary meetings were meant to pressure supervisors to reduce charges and penalties by calling into being, and then strengthening, a network of activist stewards in high-discipline RTO and
Other than the safety resolution process, efforts to expand worker control and shop-floor power failed. Against obvious Transit resistance, Toussaint was just not very committed to changes that would enhance spontaneous workplace action or shop steward power against the daily application of “management rights.” His instinctive inclination was that union officers should lead and paternally protect members, and workers should follow, like an army.122
The speed with which agreements were reached that final weekend appeared to justify the closed-door nature of the negotiations, but this meant union concessions – or even review of language by a larger group – received no input or review from the mandated union bodies. That was another effect of working on Dellaverson’s clock: the approaching deadline and the many items still on the table made it seem like there was simply no time to confer with anyone outside the bubble. The core group of five worked methodically through the union’s list without reaching out to any other member of the Local’s erstwhile negotiating team or policy committee.123 The deal to preserve health benefits in exchange for Dellaverson’s long-desired bus consolidation was made without any consultation with, or even warning to, the union’s bus VPs, who would soon face a storm of criticism from their members for “agreeing” to the merger. Beginning in 2001, Toussaint had lodged a moral claim that sustaining health benefits was an inviolable right, not a cost item. Now, he agreed to levy a price on one section of the union in exchange for a Local-wide benefit.124
This particular trade, but also Toussaint’s entire negotiating approach, were the logical culmination of a practice that had begun 17 months earlier, when Dellaverson first proposed Regional Bus. Despite the furor after the disclosure of those discussions, or the efforts in summer and early fall 2002 to create a greater degree of participatory democracy in negotiations, the secrecy of
6 Final Contract and Fallout: Why No Strike?
As the clock approached midnight and contract expiration, the union still had not moved from its demand for a 6 percent-6 percent-6 percent raise. Yet Dellaverson’s clock management meant that no major money/cost item besides health benefits had been agreed on, or even discussed. So the union announced that progress had been made and the union would “stop the clock” on its strike threat.125
When bargaining reconvened several hours later, the TWU contingent was whittled down to one. Toussaint met alone with Dellaverson and, for the first time during these negotiations, MTA Chairman Peter Kalikow, to discuss all the remaining money costs of the contract. When he emerged an hour later, negotiations were complete except for a day of crossing “t”s and dotting “i”s on contract language. The pool of people Toussaint consulted before he signed off on the deal had shrunk to none.
Toussaint read off the agreements to me and I jotted them down. “Equity” provided $3.5 million for supplemental wage increases to various titles, at the union’s discretion. Childcare and training both established monthly payments into jointly administered funds. Elimination of the $4.15/hr training wage and better pay and work provisions for traffic checkers fulfilled Toussaint’s promise to help eliminate gross inequities.126 Transit agreed to seven more “TA release” staff. A fund was established to provide prescription benefits for pre-Medicare retirees, and medical co-pays rose five dollars.
The most important number was the wage increase. After pledging “no zeroes” Toussaint agreed to a three-year wage package of 0, 3, and 3.5 percent.
Final money items. After Toussaint’s meeting with Kalikow and Dellaverson in the early morning of December 16, 2002, he told me the agreed-upon terms, and I scribbled them down on a notepad
REPRODUCTION COURTESY OF TAMIMENT LIBRARY/ROBERT F. WAGNER LABOR ARCHIVES, NEW YORK UNIVERSITY
Toussaint’s abrupt decision to accept a first-year wage freeze was a political and ratification problem when he had his earlier rejection of “zeros” thrown back at him.129 That he was willing to do so suggests two prior decisions. First, an urgency to avoid a strike. Second, a determination to preclude potential objections before a deal was struck from the Local’s Negotiating and Contract Policy Committees – the constitutional forms meant to ensure at least some degree of collective consultation and decision-making. He wanted to avoid the risk that, as in 1980, the Local’s president would lose control of a process
read through what might affect us … [Roger] asked Meginniss, ‘Well, how would it affect me as union president?’ Could they consider you an enemy combatant? You could go to jail, maybe be in there for a while. So that was on Roger’s mind, there’s no doubt about it. And Ed. They were concerned about that. So we left that meeting with the assumption that if we go on strike, they can hold Roger for a long time … I was supposed to not talk about it, and I didn’t talk about it. But I felt that we probably wouldn’t go on strike after that meeting.130
Doherty’s view is supported by evidence from several other sources, both political supporters and opponents, both contemporaneous and retrospective. Sean Ahern, an old Track acquaintance, talked to Toussaint soon after the contract was signed. Toussaint, he reported, “was sensitive to the political climate … concerned that they were going to get smashed if they went on strike, that they would be swept away.” Steve Downs recalls that Toussaint “talked several times to the Executive Board about we’re going to have to be very careful. You can’t do X, Y, Z in a war economy.”131
he had the misfortune of becoming president when the economy turned bad. It’s not 1999 when the Authority was running a big surplus, when the city and state were running off of big surpluses, and transit workers were fired up and ready to get their share. Now there’s a budget crunch, we had September 11, and the city took a hit with that, and the effect that
had on the political climate so that any union that sort of went out now and crippled the city’s economy would very quickly be painted as being unpatriotic and continuing the destruction even more.132
Staff Rep John Simino, tasked with co-heading the Organizing Committee, stated bluntly, “After 9/11 we knew we couldn’t go on strike. It was still that whole year of feeling of everyone together New York, all New York as one, so it was very difficult … we weren’t in a position to strike. We ate the zero.” His work, Simino said, was about creating a realistic bluff: “We wanted the TA to understand we were ready for [a strike].”133
Whether or not driven primarily by his Patriot Act concerns, in the weeks and months leading up to expiration, Toussaint progressively cocooned himself away from the union’s officers and their high expectations. He surrounded himself with outside advisors who counseled moderation and civic responsibility because they advocated the path he had already chosen. Basil Paterson told the New York Post a strike was never a real prospect. “The MTA always believed Roger was serious, but never serious about a strike.”134
One danger for Toussaint, though, was that the hopes the union’s contract campaign had aroused might lead to a backlash – and a demand to strike – from union officers if they were consulted before a deal was finalized. I was not alone in believing that once the clock had been stopped negotiations would continue through December 16. An unknown “adviser to the union” had already told the New York Times “that Local 100 was considering beginning the strike later than Monday … The thinking is that Monday could be used to keep the city off-balance and to rally public support from other unions and the public. The transit workers and other unions have scheduled a rally at City Hall Park and a march across Brooklyn Bridge on Monday afternoon.”135 Indeed, by his own account to Village Voice writer Tom Robbins, Toussaint had suggested a similar strategy in 1999. “I told [Local 100 president] Willie [James] that we should call a time out, extend the contract 24 to 48 hours. Then we could have
But a “time out” would have made the convening of the Contract Policy Committee at the union hall, or at least the 23-person Negotiating Committee – all its members were milling around the Hyatt – almost inevitable. Depending on the composition of a Monday morning meeting, it is likely that there would have been at least several, and potentially many, officers urging Toussaint to reject Transit’s offer, objecting to the zero or the bus consolidation, and pressing him to return to the bargaining table and demand more. They would have been far less likely to support proposed terms than the finalized package they were handed 12 hours later. By striking a deal in the early hours of Monday morning, Toussaint foreclosed their opportunity to weigh in on whether the contract was acceptable.137
Contract preparations had started with more democratic participation than in any transit worker’s memory but ended with none at all. Whatever the arguments for, or utility of, opting for small group negotiations over (more) open bargaining, the main rationale for not consulting at the 11th hour was that it allowed Toussaint to maintain unilateral control over negotiations. Toussaint would still have to abide by potential vetoes from the Executive Board and membership, but he had fenced off all action and initiative for himself alone, as he did again in 2005. Of course, traditional contract negotiations – the type Dellaverson wanted and Toussaint eventually embraced – are structured to encourage that practice.
7 Ratification and Objections
Toussaint presented the completed MOU to the Joint Executive Board on the evening of December 16. In violation of the By-laws, only Executive Board members were allowed to ask questions about the new contract, another effort to limit dissent.138 The hefty package – 59 pages in draft form! – was physically compelling and, upon paging through, the many changes looked impressive.
Toussaint’s pitch for ratification varied. At times he suggested the MOU had “remarkable improvements,” with gains “more extensive than have been made in any agreement in modern memory.” At other times, he seemed more subdued, calling the raise “reasonable under the circumstances,” and telling members at contract information meetings, according to one activist’s characterization, “we were in a bad situation, we’ve got to build up for the next time. Unfortunately, this isn’t the time, next time is the time. We’re going to build up for it.” Somewhere in-between was his dubious assertion that the preservation of the existing package of health benefits also meant the union would not have to “pay” to protect those benefits in future contract rounds, a claim amply disproved in 2005. But he also issued veiled threats, that if the contract was rejected, all the gains won would be pulled off the table or, parroting Sonny Hall in 1992, that the contract would go to a third-party arbitrator to re-write. It seemed that any argument might be deployed.140
A number of objections were raised at the Executive Board and later in a “Vote No” campaign organized by the alienated wing of ND. Foremost was the wage freeze in the first year and the overall wage package of 6 percent plus the lump-sum, which they contrasted with the 12 percent hike over three years the Local had secured in 1999. There were fears in TA Surface and OA about the upcoming consolidation of the two systems, particularly its possible effects on seniority; the closest tally in any division was in TA Surface, where just 52 percent voted “yes.” (Approval was far greater in OA, 67 percent, whose workers would now receive twelve sick days instead of five. Nonetheless, both incumbent Bus VPs lost their bids for re-election the following year.) A third concern
Notably, the lead oppositionists of Rank and File Advocate did not raise concerns about failures to wrest away some management control of the workplace. Did they still believe in rank-and-file struggle? Nothing in their critique, which seemed more like preparation for the 2003 election rather than explaining “what the union could be like” or “rais[ing] class awareness,” indicated that. Nor did they advocate a strike, but rather “back to the table!” although their literature did not explain why better results would be available there. By June 2003, Toussaint’s most prominent critic, Recording Secretary Noel Acevedo, suggested that additional gains might be won by threatening to go to arbitration, hardly a militant rallying cry.141
Within months, the MTA’s bruited budget crisis had at least partially disappeared. The City and State Controller’s offices reported the MTA had hidden a $537 million surplus, setting it aside to close future budget gaps. Pressed by TWU opponents to call for the contract to be re-opened, Toussaint demurred, telling The Chief, “We never negotiated based on the employer’s ability to pay and we will not do so in the future,” and explained directly to his members, “If we negotiate based on the financial condition of the employer, what happens when the MTA is really broke?” Responding to the charge that he had been fooled, like Willie James in 1996, he explained that, unlike James, who had accepted the MTA’s claims of budget crisis, he had “never broke down to asking the MTA what its bank balance is.”142
Nonetheless, the zero in its first year had to be embarrassing to Toussaint after his December promises; defending himself then and later, he pointed to the new funding for education training, childcare, and especially the value of contract language which maintained the current level of health benefits and added prescription coverage for 13,000 pre-Medicare retirees. Cumulatively, the 13.5 percent value of the wage and benefit package was roughly the same as in 1999. Toussaint pointed to the tougher political-economic conditions; his
Returning to my earlier characterization of five categories of demands – now, results – the union seemed to have achieved most in its paternalist concerns for relief from management harassment, and solidarity with the most victimized – matters Toussaint had shown great passion for, across two years in office. It did moderately well on new “tools” that might help the union’s servicing efforts. On “things,” it preserved and even enhanced health benefits (but at the cost of bus consolidation), but undoubtedly most workers were disappointed by their wage increases. With the exception of the safety resolution form, fortuitously won after heartbreaking tragedy, it achieved the least in building the sovereign power of workers, whose bottom-up nature had consistently seemed a lower priority, at the bargaining table and in the two previous years.
8 Conclusion: a Better Bargain?
The problem of whether to utilize established negotiating and political avenues, respect traditional norms of behavior, and present a “responsible” public face, creates a difficult paradox for unions. The argument for this type of incremental, partnership perspective on bargaining suggests that what each side badly wants may not be so onerous for the other to grant, both in contract language and the daily intercourse between the parties. Concessions to some of management’s priorities are tolerated to allow fulfillment of union’s chief goals, while the hazards of open warfare are avoided. Then the result can be scored: who won the language? Who won its implementation? Toussaint, then and later, argued that Dellaverson “overpaid” for bus consolidation and the first-year wage freeze. Dellaverson believed his disciplinary and health benefit concessions were inconsequential: new Labor Relations initiatives would forestall substantive changes in the disciplinary system and other instruments of management power, while Transit control of the health benefit system would
That type of bargaining surely precludes, and even disappears from our imaginations, the riskier prospect of seeking transformative goals, a decisive shift in the balance of power, and the possibility of substantively re-configuring social norms in the workplace. In the past 50 years, it is employers that have often embraced these objectives, and rarely labor. The 2002 contract negotiations between TWU Local 100 and the MTA seemed to begin as an unusual recent instance of a union pressing for extensive contractual changes that would force management to abandon decades of core principles and practices, and readying itself for a strike if those were not forthcoming. A recently-elected and self-avowed militant leadership seemed prepared to challenge the normalized relationship between union and management, in an attempt to wrest concessions that would threaten management control over workers and work. It developed a new critique of the employer, mobilized a restive rank-and-file, encouraged an expansive set of expectations, and brandished its potential power to stop transit service in New York City.
Gains on mistreatment and “dignity” were real, but, ultimately, pragmatic bargaining prevailed. Threats of legal penalties and apparently problematic economic and political conditions played a part in causing the union to trim its sails and lower its expectations. Negotiating within the web of rules led to ritualized bargaining procedures and incremental give-and-take outcomes within bounds acceptable to both the MTA – which maintained its “legitimate management powers” and “right to run the railroad” – and a Mayor and Governor eager to avoid a new type of labor pattern.144 Contractual demands that might have created a structural basis for greater workers’ sovereign power were abandoned to Transit resistance during or after the bargaining. Similar to Toussaint’s explanation that the role of “the union” was to stand between management and worker, the Local chose the laudable but also paternalistic route of winning “things … dispensed from on high,” that fixed members’ problems, like a diligent top-down service union. This was not necessarily different from what most workers – or even Toussaint’s union opposition – wanted or expected (although both wanted more money). As a result, the contract did not transform either transit life or transit workers’ imagination about how work life might be restructured.
The old bargaining methods remained too, precluding any transformation of union culture. The union ultimately abandoned tentative attempts at a more open, collaborative, and participatory type of bargaining that might
But the failure of other union actors to assert themselves, to write themselves into the script and play a larger part, despite the provisions of the Local’s By-laws that officially mandated their involvement, should not be overlooked; nor did the membership spontaneously stir in the workplace, creating pressures on both Transit and union. The officer corps allowed itself to be pushed off-stage, progressively losing access to information, giving up any role in giving advice and making policy, or even a seat at the table as the bargains were struck and the final deals sealed. There was no official edict announcing this; it just seemed to transpire – an easy slippery slope.
During its two years at the union hall, the new officer corps had been unable but also disinclined to challenge a general perspective and culture decades in the making, and reinforced by the character of the union president. There was hardly any transfer of power, responsibility, participation, or initiative down through the union’s hierarchy (and ultimately, to the rank-and-file). The Local successfully mobilized many thousands, but failed to engage with the hundreds – or Eddie Kay’s 1,000-member negotiation team – whose education and development were central to any union-building project, or to organize a consistent threat at the point of production. That was the balance sheet of two years of New Directions’ – and, increasingly, Toussaint’s – leadership of the union.
While the MTA made some concessions on its practices, it got the things it most valued – business-as-usual at the bargaining table, the first-year wage freeze, labor peace on December 16 and for three years thereafter, and continued management control of the shop-floor. It also decided that Toussaint had “blinked,” that, ultimately, he was a paper tiger. In the coming years, it found many work-arounds of the new language, and new ways to create mischief and mistreatment. That left Toussaint frustrated by both outcome – surely not what he had hoped for on January 1, 2001 – and the apparent lack of internal
Jane McAlevey and Abby Lawlor, Turning the Tables: Participation and Power in Negotiations, UC Berkeley Labor Center, May 2021, 125. https://laborcenter.berkeley.edu/wp-content/uploads/2021/05/Turning-the-Tables.pdf.
“Verbatim Transcript,” Final Days Main Table Bargaining, Box 16, MKPTL, original erroneously dated Dec. 16, 2002.
All information in this chapter is based on the recollections of the author, unless otherwise footnoted, official union documents and unofficial notes from bargaining sessions, as well as subsequent interviews with many of the participants. I was the union official responsible for preparing the Local for bargaining, organizing, and monitoring the negotiations. I joined President Toussaint and the union’s two lead lawyers in designating the contractual issues that various committees would discuss. I ran the weekly de-briefing sessions of those committees. I participated in almost all of the bargaining sessions between Toussaint and MTA Director of Labor Relations Gary Dellaverson.
Toussaint’s prepared text, “Talking Points December 2, 2002,” and notes from the actual meeting “Main Table Dec. 2, 2002,” are both in Dec. 2002 Main Table Bargaining folder, Box 16, MKPTL.
Ibid.
Ibid.
Ibid.
Gilpin, The Long Deep Grudge, 6.
Steven Greenhouse, “Settlement That Averted Strike Approved By Transit Workers,” New York Times, Jan. 24, 2003.
For even more detail, especially offers and counter-offers and the reasoning behind them, see Kagan, Dissertation.
André Gorz, “Reform and Revolution”, trans. Ben Brewster, Socialist Register, Vol. 5 (1968): 124.
“TWU Local 100 Contract Demands”; HBT costs were estimated at $320 million, including paying off the deficits incurred in 2001–02, HBT Benefits Bargaining [Part 1/2] folder, Box 16, MKPTL. “The cost of a 1% increase in wages was $19.9 million,” 10/16/02, Sept–Oct 2002 Main Table Bargaining, Box 16, MKPTL. For all demands, see Appendix D in Kagan, Dissertation Appendix Supplement, https://academicworks.cuny.edu/cgi/viewcontent.cgi?filename=0&article=6564&context=gc_etds&type=additional.
Toussaint-Thompson.
“Transcript of Shop Stewards’ Meeting, Dec. 15, 2002,” Off-Table Folder, Box 18, MKPTL.
“Beakies” were Transit investigators: see Chapters 2 and 4. Others included ending Transit doctors’ ability to make unilateral fitness-for-duty determinations and simplification of procedures to file FMLA or workers’ compensation claims.
Contract 2002 Bulletin #3, Off Table Memos, Flyers, Etc [Part 1/2], Box 18, MKPTL.
“Are we looking mostly for top-down forms, in which you have maximum control and can make sure things get done, or bottom-up forms which empower our stewards and section officers if they are diligent and we invest in making them diligent?” I wrote to Toussaint in November. “Maybe some blending, where we establish general principles that give us the right to grieve, along with bottom-up forms for daily activity,” “Meeting w/ Dellaverson 11/6/02,” November 2002 Main Table Bargaining folder, Box 16, MKPTL.
Main Table Dec 2 2002, Main Table Bargaining folder, Box 16, MKPTL.
Diaz-Goldstein. I counted myself as part of this group.
“Contract Survey,” Local 100 Express, August 2002.
Kalikow was a real estate developer, not a transit or railroad lifer.
The State/City policy and history of “pattern bargaining” with its unions is extensively discussed in earlier chapters. Briefly, one union set the cost “pattern” in each round of bargaining and other unions could not appreciably deviate from it.
A compilation of management demands can be found in “Management demands for Track, etc.,” in September 2002 Bargaining folder, Box 16, MKPTL.
“Collective bargaining, by definition, is an exercise in pragmatism. It requires an accommodation of potentially conflicting views,” Daniel H. Kruger and Charles T. Schmidt, Jr., Collective Bargaining in the Public Service. (New York: Random House, 1969): 170.
Cutcher-Gershenfeld, McKersie and Walton, Pathways to Change, 21.
Kruger and Schmidt, Jr., Collective Bargaining in the Public Service, 166.
Shanker quoted in Maier, City Unions, 168.
David Katzman-Marc Kagan interview, March 10, 2014.
See TWU Local 100 Bylaws, Sections XXIV, XXV, and XXVI at http://www.twulocal100.org/sites/twulocal100.org/files/twu_local_100_bylaws_rev4.pdf and Chapter 2. Most of the “divisional” sections of the contract cover a whole division, but some, such as “Revenue Collectors,” cover just small discrete work titles.
Local 100 Express, February-April 2002; “Contract Survey,” Local 100 Express, August 2002. TWU Local 100 Express Newspaper 2001–02 [Part 2/2] Box 15, MKPTL. For example, about 3 percent each thought the following issues were the most important: Martin Luther King Day as a holiday, fixing picks and schedules, better ability to use vacation and sick leave. But the latter two issues were clearly more important to workers than MLK as secondary concerns: see “Contract 2002,” June 2002 JEB Contract Meeting, Box 16, MKPTL.
McAlevey and Lawlor, Turning the Tables, 28–30. That process would have been most difficult in Stations, and not easy in RTO.
“For the Record,” Chief-Leader, April 5, 2002. Differences between TWU and 1199, though, were significant. One was that 1199’s political connections in Albany had been built over decades, and utilized a membership of over 100,000 from which it could mobilize significant ground forces. The other was that it actually jointly lobbied with its main employer, the League of Voluntary Hospitals, for more state aid to hospitals, some of which, in a quid pro quo, then found its way into workers’ pockets. The MTA Board of Trustees, on the other hand, was mostly appointed by the Governor and would follow his mandates on cost savings.
“Confidential Report Re: Contract Negotiations,” May 9, 2002, Miscellaneous folder, Box 8.
Staughton Lynd, “We Are All Leaders”; Barbara Madeloni, “We Need Democracy on the Job and in the Union, Too,” Labor Notes Jan. 28, 2021.
Gilpin, The Long Deep Grudge.
“Contract 2002.” For the complete document from which this was drawn, see “Memorandum to Roger Toussaint From Terry Meginniss,” June 2002 Bargaining Preparations, Box 17, MKPTL.
Contract 2002, capitalized in the original.
See untitled document in Aug 2002 Bargaining Notes, General, Box 16, MKPTL, for lists of issue committee members, Division Workshop Chairpersons’ Guide, Cornell Negotiations Training 2002, Box 17, MKPTL. For “organizing committee,” see Patafio-Kagan. McAlevey and Lawlor, Turning the Tables, 115, describe a very similar process: “Members at the convention broke off into small groups, once by department and once mixed with other departments to discuss the priorities and continue to bring forward issues that had surfaced at each hotel. They also began to talk about what it would take to actually win their demands from the various hotel employers”.
Members were invited to contact committee chairs with suggestions: see “Eight Committees Will Establish Detailed Agendas,” Local 100 Express, August 2002.
See FOIA s and Other Information Requests folder, Box 17, MKPTL.
For an example of Transit’s preventable accident discipline, see the Bill Storm anecdote, Chapter 7.
All of these reports in Main Table, Sept.–Oct. 2002 and Main Table, Nov. 2002 folders, Box 16, MKPTL.
The answer was proximity to union representation plus the historic patterns that resulted.
See Contract 2002 Bulletin #9, Off Table Memos, Flyers, Etc [Part 1/2], Box 18, MKPTL. For raw disciplinary statistics by type and department, see Disciplinary Statistics, Box 17, MKPTL.
There were no efforts to show quality-of-work differences between high- and low-discipline areas. There were attempts by the union to show that high levels of discipline had no effect on the “employee availability” Transit said it cared so much about. More speculatively, it argued that carrots would be better than sticks.
Javits package, Off Table Memos, Flyers, Etc [Part 2/2] folder, Box 18, MKPTL.
Schwartz-Kagan. On mobilization, also see Saly-Kagan and Patafio-Kagan.
“TWU Local 100 Contract Demands,” Sept. 20, 2002, see Appendix D in Kagan, Dissertation Appendix Supplement. Divisional demands were also appended and were in addition to the “300.” Some demands were there solely to ward off complaints from members: no officer realistically expected to win a 20-year half-pay pension two years after the dot-com stock market crash, and the issue was barely discussed. Others, like the demand for no fare increase, were not legal subjects of bargaining and were for public consumption, rather than the bargaining table, to fend off any blame for the forthcoming fare hike. Ultimately, nearly a quarter of those demands were won in whole or part; that might seem to contradict my general thesis that Transit “won the war,” but see the conclusion of this chapter, where I address this issue. For a complete breakdown, by category, of “Total Demands,” “Won,” and “Partially Won,” see Kagan, Dissertation, 411f60.
See Sept. 2002 Bargaining Notes General folder, Box 16, MKPTL. My 2014 notes appended to “TWU Local 100 Contract Demands, September 20, 2002,” Sept. 2002 Bargaining Folder, indicate which demands were added or revised based on input from that meeting. Only two matters were specifically reserved for Toussaint and a few others who met with Dellaverson all fall: wages and health benefits.
“History in the Making: TWU Local 100/MTA Contract 2002 Kickoff,” Off Table Memos, Flyers, Etc. [Part 1/2], Box 18, MKPTL; Local 100 Express, October 2002.
Schermerhorn-Kagan; “Thanks & Good Job Preparing for September 20” memo, September 2002 Bargaining folder, Box 16, MKPTL, italics in original.
Katzman-Kagan.
“They would stall and stall and stall,” Maureen Lamar-Marc Kagan Kagan interview, date unknown; “Farming Out – 11/2 Status,” and “Main Table, Nov. 8, 2002,” Nov. 2002 Main Table Bargaining, Box 16, MKPTL; “Amalgamated Transit Union, May 3, 2002; Subject: FTA Ruling on Random Drug and Alcohol Testing,” Drug and Alcohol Testing folder, Box 16, MKPTL.
Main Table, Sept. 27, 2002; Main Table, Sept–Oct 2002 folder, Box 16, MKPTL.
Schermerhorn-Kagan.
Workers did not “see” the costs of better work conditions, but Transit did. For example, when Transit mandated that the number of station agents who could take vacation be virtually equal every week of the year, it saved money on overtime and reduced the number of additional “extras” it needed to provide vacation relief. And see Transit’s detailed costing out of its Car Equipment proposals in “Memorandum CED Divisionals Chronological,” Bargaining Information from Various Departments and Divisions Dec. 2002 Negotiations, Box 16, MKPTL.
“Contract Survey,” Local 100 Express, August 2002.
Schermerhorn-Kagan; Divisional Binder, Box 16, MKPTL.
Kruger and Schmidt, Jr., Collective Bargaining in the Public Service, 184.
If a worker needs a day off and thinks they will not be granted one, they are likely to call in sick.
Cutcher-Gershenfeld, Pathways to Change.
For example, drug and alcohol testing and fitness-for-duty medical determination issues were different for operational and non-operational titles.
Main Table Sept.–Oct. 2002, Main Table Nov 2002 and Main Table Dec 2002, all Box 16, MKPTL.
See “Discipline, Drug & Alcohol Main Table Committee, 11/22/02,” Discipline Bargaining, “Childcare Discussion 11/27/02,” Childcare/Discrimination/Harassment Bargaining, and all main table meeting notes from late November, Box 16, MKPTL.
For example, see “Med/Dis/Emp Avail,” date unknown, Medical Appeal/Workers Comp Bargaining, Box 16, MKPTL, and exchanges like this one throughout: “[TWU]: C-3, C-4 [forms need to be] in accident report package. They fill it out and file to get [workers’ compensation] payment. Dellaverson: What’s an accident package?”
Toussaint, Watt, and Kagan sat on all these committees with the two lawyers, Schwartz and Meginniss. For details see Kagan, Dissertation.
Paterson was a former Deputy Mayor and a member of the “Harlem Four,” with David Dinkins, Charles Rangel and (former Manhattan Borough President) Percy Sutton. Later, his son became NY Governor. Bill Lynch was the campaign manager and later Deputy Mayor for Mayor Dinkins. Sunshine was Dinkins’s chief of staff; before and after, he was an advisor to NY Governors Mario and Andrew Cuomo.
Serrin, The Company and the Union.
Richard Steier, “The TWU’s Collision Course,” The Chief, Sept. 6, 2002.
Kay-Kagan.
“Unpredictability” from David Selfman, “Strike-Wary City Preps for Subway Mayday,” New York Post, Nov. 16, 2002; “Thousand-headed monster,” from Patafio-Kagan.
See “Follow All Work Rules,” “Safety Before Schedule,” and “Bus Operators: When to ‘Go Slow’ or ‘No Go’ in the Snow,” Off Table Memos, Flyers, Etc. folder [Part 1/2] Box 5, MKPTL.
“Union Pride at Car Equipment,” Local 100 Express, May 2002. By definition, “shopgates” were held outside a shop, at its gate.
Patafio-Kagan; Schermerhorn-Kagan. For a complete package of Contract Bulletins #s 1–12 see 2002 Member Organizing Efforts [Part 1/2], Box 17, MKPTL.
“Horror Stories from the Medical Abuse Centers”; “Picket TA Clinics” in Off Table Memos, Flyers, Etc. folder [Part 1/2], Box 18, MKPTL.
“Track News, Oct. 31, 2002: Pataki Challenges Local-100 and Gets All Slapped Up,” Off Table Memos, Flyers, Etc. folder [Part1/2] Box 18, MKPTL.
The Local picketed the November meeting of the MTA where fare increases were discussed and twice, in concert with the NYC Central Labor Council, mobilized members in save-the-fare leafletting at subway stops. For various events, see materials in Off Table Memos, Flyers, Etc. folder [Part 1/2] Box 18, MKPTL and Randy Kennedy, “Transit Fare Increases Are Certain, M.T.A. Board Decides,” New York Times, Nov. 22, 2002; “Working for Working Families,” Dec. 6, 2002 and “TWU Hits Back at TA’s Cries of Poverty,” Off Table Memos, Flyers, Etc. folder [Part1/2], Box 18, MKPTL.
“Main Table, Nov. 8, 2002” in Main Table Nov. 2002, Box 16, MKPTL.
See Richard Steier, “TWU’s Militant Diplomacy,” The Chief, May 3, 2002 for discussion of earlier attempts to conciliate Pataki. See Downs-Goldstein and Downs, Hell on Wheels for a critique of the strategy of looking to Pataki.
Kennedy, “Transit Fare Increases Are Certain, M.T.A. Board Decides”; Steven Greenhouse, “For Union, Transit Workers’ Deaths Make Contract Talks With M.T.A. More Difficult,” New York Times, Nov. 30, 2002; Steven Greenhouse, “Differences on Major Issues As a Transit Strike Looms,” New York Times, Dec. 10, 2002.
“Main Table, Nov. 8, 2002”; Richard Steier, “The TWU’s Collision Course,” The Chief, Sept. 6.
Greenhouse, “For Union, Transit Workers’ Deaths Make Contract Talks With M.T.A. More Difficult”.
“Transit Union Told to Avoid Strike Vote,” New York Times, Nov. 23, 2002; Randy Kennedy, “Mayor Warns of a Crippled City If Subway and Bus Workers Strike,” New York Times, Dec. 7, 2002; Michael Saul, Helen Peterson and Pete Donahue, “Strike Will Be a Killer Mike Fears,” New York Daily News, Dec. 7, 2002; Editorial, New York Post, Dec. 11, 2002.
See Schwartz-Kagan and “Mayor Bloomberg Press Conference,” Dec. 9, 2002, Off Table Memos, Flyers, Etc. folder [Part 2/2], Box 18, MKPTL. For Transit’s injunction, see 2002 Contract Injunction Against Officers of TWU Local 100 folder [Parts 1/2 and 2/2], Box 17, MKPTL; Steven Greenhouse and Andy Newman, “Judge’s Order Bars New York Transit Strike,” New York Times, Dec. 14, 2002.
Greenhouse, “For Union, Transit Workers’ Deaths Make Contract Talks With M.T.A. More Difficult”; Saul et al., “Strike Will Be a Killer Mike Fears”.
Tamer El-ghobashy and Jose Martinez, “TA Assures Union as Track Work Resumes,” New York Daily News, Nov. 25, 2002. Michael Wilson and Nichole M. Christian, “Killed in the Subway They Tried to Make Safe for Others,” New York Times, Nov. 29, 2002.
Katzman-Kagan.
Zach Haberman, “TWU Calls for Action Over Track Tragedies,” New York Post, Nov. 24, 2002.
Greenhouse, “For Union, Transit Workers’ Deaths Make Contract Talks With M.T.A. More Difficult”; Bryan Virasami, “MTA Puts Track Workers Back on Job; Talks on Safety with Union to Continue,” New York Newsday, Nov. 25, 2002; Elissa Gootman, “Routine Subway Track Work Is to Resume, With Extra Safety Precautions,” New York Times, Nov. 25, 2002.
The original demand was weaker: “prior to the commencement of work, a Union representative will consult with management to ensure the work will be done safely,” “TWU Local 100 Contract Demands,” final iteration in “2002 TWU-NYCT MOU”; “Remarkable” in Downs-Kagan email. In available notes the demand to “challenge unsafe work orders” first appears on the evening of Dec.13. “6. Safety,” Dec. 2002 Main Table Bargaining folder, Box 16, MKPTL.
“They Must Abide by Contractual Agreement,” Local 100 Express, Oct. 2003.
“Behind the Attempt to Split the Local,” Rank and File Advocate #8, Nov. 2003. For more on the campaign to keep Private Lines in Local 100, see Unger-Kagan. Relations between the International and the Local were hostile: see Chapters 6 and 7. For more background on this animosity, see “TWU Leaders Take Feuding into Court,” The Chief, Aug. 23, 2002; “Letter, ‘Hall Sabotaging Local 100,’” The Chief, Sept. 13, 2002; “Letter, ‘Toussaint Charge is Slander,’” The Chief, Sept. 20, 2002.
“Memorandum; TWU Contract Negotiations: Potential Impact of USA Patriot Act on Strike Activities; November 1, 2002,” Off Table Memos, Flyers, Etc. folder [Part 1/2] Box 18, MKPTL.
Terry Meginniss email to Marc Kagan, “Re: 2002 Patriot Act Memo,” Jan. 3, 2022, Miscellaneous folder, Box 9. More recently, see Naveena Sadasvim, “Welcome to Utah, Where Pipeline Protests Could Get You At Least Five Years in Prison,” Grist, March 21, 2023 https://grist.org/protest/utah-critical-infrastructure-law-felony/ for discussion of recent ambiguously-worded legislation there and elsewhere aimed at preventing disabling of “critical infrastructure”.
The political/legal role of the Executive Board led to subpoenas against its members in 1980 and 2005, and an injunction against them in 1999. In early 2003, Downs-Goldstein noted the problem of negotiating and striking in the context of 9/11, but was silent about the Patriot Act memo, its most concrete manifestation. In my view that means neither he, nor his long-time comrade RTO VP Tim Schermerhorn, knew of its existence. MOW VP Julio Rivera, Toussaint’s closest collaborator for twenty years, also knew nothing about the memo, Rivera to Kagan email, Jan. 9, 2022. For “bin Laden’s friend,” see Chapter 7.
Terry Meginniss writes, “I don’t recall public exposition of our concerns, very likely because we did not see a value in announcing to the world that we were concerned about this potential for repression,” Meginniss to Kagan email, Jan. 3, 2022.
“Half” from Steven Greenhouse, “Differences on Major Issues As a Transit Strike Looms”.
“Proposal Made To TWU by MTA NYC Transit,” Dec. 2002 Main Table Bargaining folder, Box 16, MKPTL.
Bizarrely, a worker could simultaneously be subject to both its new “reward” and “punishment” features, Ibid; “MTA New York City Transit Labor Negotiations Briefing Book December 2002,” likely from a few days later, Dec. 2002 Main Table Bargaining folder, Box 16, MKPTL.
“Dec. 7 Javits Meetings” package, “Do Your Part,” “Contingencies,” Off Table Memos, Flyers, Etc. folder [Part 2/2], Box 18; “Surrounded” from New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority against Sonny Hall et al., Memorandum of Law in Support or Plaintiffs’ Application for Preliminary Injunction,” 2002 Contract Injunction Against Officer of TWU Local 100 [Part 1/2] folder, Box 17, both from MKPTL.
Patafio-Kagan.
Saly-Kagan.
“Contract 2002”.
“Do Your Part” listed strike instructions: see 2002 Member Organizing Efforts folder, Box 17, MKPTL. The TA/MTA has never attempted to run the system, or portions of the system, with managers or strike-breakers. Scabs who report to work are given busy-work.
For information on the preparations for the December 16 rally, including a list of participating unions and organizations, see 2002 Member Organizing Efforts folder [Part 2/2], Box 17, MKPTL. It takes a certain number of hours to implement a transit strike. Subways and buses finish their scheduled routes to their terminals, then must be returned to their yards or depots.
“12/11 Main Table,” and “Arthur Schwartz notes 12/11,” Dec. 2002 Main Table Bargaining, and “12/11,” New Technology/Farming Out Bargaining, Box 16, MKPTL. Also see Steven Greenhouse, “The Transit Showdown: Negotiations; Union Lowers Its Demands As M.T.A. Plans to Request Injunction Against Strike,” New York Times, Dec. 12, 2002, where the session is described as the “realest” yet.
The full package of contractual changes can be found in 2002 MOU, Chapter Eight Box; many of its highlights can be found in Appendix E in Kagan, Dissertation Appendix Supplement, https://academicworks.cuny.edu/cgi/viewcontent.cgi?filename=0&article=6564&context=gc_etds&type=additional. For bargaining notes, see “12/13 Afternoon-Evening Childcare,” “Impartial – TA proposals 12/13 Aft-Eve,” “6. Safety,” and “Sidebars 12/13 6:45,” Dec. 2002 Main Table Bargaining folder, Box 16, MKPTL; “Discipline 12/14” Discipline Bargaining folder, Box 16, MKPTL.
For a fairly complete record of these agreements and partial summaries by both union and management of negotiations, see Bargaining Information from Various Departments and Divisions Dec. 2002 folder, Box 16, MKPTL.
In two divisions heretofore additional lump-sum hourly payments would be folded into the base rate of pay, so subsequent increases would be automatic. The union and MTA split the difference on a pending grievance: station agents would receive an additional payment if they missed five minutes of their scheduled lunch due to lack of relief personnel, instead of the previous ten. The most significant no-cost item now allowed limited “swapping” of RDOs between workers in the subway departments. Most workers could “bank” two additional unused holiday or vacation days (“AVA s”) for later use, rather than have them paid. In a few divisions, procedures were put in place to ensure fairer allocation of requested vacation days or overtime work; in two divisions, better job pick protections would be implemented. For a full list of all divisional agreements, see 2002 MOU, pp. 38–59, Box 8.
Sonny Hall letter to Willie James, “Re: Joseph Hofmann,” Aug. 10, 2000, Bargaining Information from Various Departments and Divisions Dec. 2002, Box 16, MKPTL; Louis Russo Jr.-Marc Kagan interview, Dec. 10, 2019.
Doherty-Kagan. Rumblings of dissatisfaction after the contract was signed led to some subsequent minor changes for about half the workforce. Inspection Barn workers regained the right to choose a specific job category on the seniority-based pick – this was something – but management still could reassign any of those workers as they saw fit. In Overhaul Shops, “you’re picking your location [your shop]; and inside that location, once you’re there, they have the right to assign you any job that they want within that location,” Russo Jr.-Kagan. Even for that, the union made a concession: one pick every year, one chance for a worker to change job or work location, instead of (previously) two – a significant savings in costs and disruption for Transit. That change was particularly detrimental to hundreds of cleaners, who lost the ability to alternate between outside platform work in the summer and inside barn work in the winter. For the difference between 12/14/02 and 12/18/02 language, see “Divisionals – CED Chronological,” with my handwritten notations, in Bargaining Information from Various Departments and Divisions Dec 2002 folder, Box 16, MKPTL.
I also had not anticipated that bargaining would end so abruptly, and in my absence. This was the CED equivalent of barring bus officers from bus consolidation negotiations. See below.
For final agreement, see “2002 MOU,” Box 8. For partial notes on agreements reached and rejected, see “RT-GD 12–15, am,” “Bi-furcated process,” and “12/15 7 PM,” Final Days Main Table Bargaining folder, Box 16, MKPTL.
Steve Downs argues that “the 70/30 split on being subject to the sick leave rules was a bad idea. It created a new division in how members were treated and it meant that a majority of the members no longer cared as much about the sick leave policy,” Downs to Kagan email, Jan. 13, 2022, Box 9.
Thanks to Steve Downs for calling the chronic provision, which had previously been used only in OA, to my attention. “Most pressing” from Ginger Otis, “Defiant Toward In-House Critics: Toussaint Comes Out Swinging,” The Chief, Oct. 6, 2006; also see Samuelsen to Rivera, “In MOW alone dozens of these types of ‘disciplines’ are brewing,” “Chronic/Excessive/New CBA Language,” April 5, 2004, Implementation folder, Box 9.
Patafio-Kagan; Schwartz-Kagan. That arbitrator could send the worker back to work, while the regular course of hearings unfolded.
I raised concerns about “no 1.6 [management rights] relief except for discrimination cases” in my December 16 memo to Toussaint, “Remember MLK Day!,” Final Days Main Bargaining Table folder, Box 15, MKPTL.
Two officers and one staff member made brief appearances to explain existing safety and disciplinary procedures.
Clemente Lisi and Robert Hardt Jr., “As Talks Go On TWU Sees Signs of Progress,” New York Post, Dec. 15, 2002.
For prior Traffic Checker pay and work conditions, see Chapter 4. About a fifth became full-timers, gaining also vacation and sick days. The rest received minimum weekly hours-of-work guarantees that qualified them for health benefits, a faster step-up to top pay, and the same transit system passes every other worker received. Bargaining Information from Various Departments and Divisions, Dec. 2002 Negotiations, Box 16, MKPTL.
“Five years” is a very conservative back-of-the-envelope approximation. Assuming workers made an average of $40,000 yearly, the lost .5 percent increase was worth $200/year. That ignores the copious amounts of overtime made by train and bus operators and the value of subsequent compounding of that .5 percent. A less conservative calculation, based on the cost of a 1 percent raise, calculated in 2002 as $19.9 million places the .5 percent at a bit less than $10 million annually. The one-time cost to Transit of the lump sum was a bit more than $30 million, recouping their costs in just over three years.
Stephen Greenhouse, “M.T.A. to Pay Higher Share Of Benefits, New York Times, Dec. 20, 2002; Michael Kramer, “Here’s What’s Really Going On That You’re Not Seeing,” New York Daily News, Dec. 12, 2002 reported that, “if a deal with the transit workers becomes a benchmark for other city employees, every single percentage point hike in wages could cost about $200 million.” Responding to my 2022 query about this last-minute change, Toussaint wrote that “your notes and your recall are both wrong.” But asked what did happen and what was his thinking, and offered the chance to be quoted extensively, Toussaint did not respond, Marc Kagan to Roger Toussaint emails, “Query on 2002 Contract,” Jan. 12, 2022 and Jan. 16, 2022, 5:52 PM and 6:20 PM; Toussaint to Kagan emails, Jan. 16, 2022, 3:22 PM, Miscellaneous folder, Box 8. Further confirmation of the initial agreement on a 3.5 percent raise in the third year is found in “Remember MLK Day!”
Doherty-Kagan.
Ahern-Kagan; Steve Downs-Mark Brenner-Marc Kagan interview, Aug. 10, 2018.
Downs-Goldstein. Subsequently, Downs averred he held a far more militant stance at the time. See, for example, Downs to Kagan email, Oct. 6, 2019, Misc. folder, Box 8. “I agree with the weight Sean gives to Roger’s concerns about the prospects of war in late 2001 and how that would affect our contract talks. I didn’t agree with Roger’s assessment at the time, however”.
Simino-Kagan.
Paterson quote from Clemente Lisi, “Deal Keeps NYers Rolling; Strike Talk Was Hollow Threat, Says Negotiator,” New York Post, Dec. 17, 2002.
Greenhouse and Newman, “Judge’s Order Bars New York Transit Strike”.
Tom Robbins, “Underground Rumblings,” Village Voice, Nov. 28, 2000.
Later that day, after the contract was presented as a finished product, there were nine “no” votes on the Executive Board. Two of the “yes” votes then were from the two Bus VPs who loyally voted with Toussaint, knowing they were putting their political futures at grave risk.
The draft form is available in Contract Ratification Binder [Part 1/2], Box 18, MKPTL. The Joint Executive Board, effectively the Contract Policy Committee, was entitled to advise before any EB vote. In 1999, Willie James had allowed JEB members to speak, and Toussaint and I had both done so, urging rejection.
“Local 100 Contract Ratified by Union Membership,” 2002 Contract Vote folder, Box 17, MKPTL. Only Local 100 members employed by Transit voted on the contract.
“Remarkable” from “2002 MOU.” “Reasonable” from Mark Daly, “TWU Won’t Press To Reopen Talks,” The Chief, May 23, 2003. “Bad situation” from Josephson-Kagan. “Dubious assertion” from Richard Steier, “Toussaint Revels in Struggles,” The Chief, June 6, 2003 which details how health benefits were paid for in 2002. Threats discussed in Kagan-Goldstein.
For “what the union could be like” or “rais[ing] class awareness,” see Chapter 6; “Vote No! Back To The Table!” in “No Layoff Clause?” material package, 2002 Contract Vote folder, Box 17, MKPTL. “Acevedo” in Steier, “Toussaint Revels in Struggles”.
Daly, “TWU Won’t Press To Reopen Talks”; Steier, “Toussaint Revels in Struggle”; Roger Toussaint, “Why We Should Be Proud,” Local 100 Express, May 2003.
“13.5 percent” from Steven Greenhouse, “M.T.A. to Pay Higher Share of Benefits,” New York Times, Dec. 20, 2002; Initial bus productivity claims from Steven Greenhouse, “The Transit Settlement: The Agreement,” New York Times, Dec. 18, 2002. For more detail, and on subsequent municipal contracts see Kagan, Dissertation and Schwartz-Kagan.
Quotes from Toussaint’s Dec. 2, 2002 comments.