KEYS TO COLLECTIVE BARGAINING
Prepared by
Dr. Mollie H. Bowers
Arbitrator/NAA
Dispute Settlement Services
Associate Professor
University of Baltimore
INTRODUCTION
These training materials have been developed for union representatives.
They contain a step by step discussion of the key aspects of preparing for negotiations and of the collective bargaining process. In order to effectively represent employees in the bargaining unit, you must understand that proper preparation is THE most critical aspect of any negotiations. It is also important to recognize that preparation is an on-going process throughout the life of a contract; not just an activity which begins sometime prior to the expiration of an existing contract. This means that the ease and thoroughness of preparation can be significantly affected by how well you monitor and document various developments during the life of a contract. Given these considerations as well as the complexity of terms and conditions contained in most contracts, rapid change in economic conditions and the growing need for innovative responses to them, concern over job security, and a number of other factors, you should expect that preparation for negotiations will be a time consuming process.
All of us have some familiarity with bargaining because it is part of our daily lives both at work and at home. Collective bargaining, however, is an institutionalized process that involves unions and employers and is designed to provide a means for determining the terms and conditions of employment for a specified period of time. This process has been described in a number of other ways including: power plays; horse trading; problem-solving; etc. Any or all of these descriptions may characterize what is happening in the bargaining process at any point in time. The important thing to remember is that bargaining is a dynamic not a static process. Consequently, the description of bargaining contained in this document should be viewed as representative, not as a model for all collective bargaining sessions.
In order for bargaining to work, both parties must believe in the process and have a mutual interest in reaching an acceptable agreement. Various strategies and tactics that can be used to achieve this goal wi11 be discussed. However, readers are cautioned not to become so involved in these strategies and tactics that they lose sight of the primary objective in bargaining -
TO ACHIEVE A MUTUALLY ACCEPTABLE, LEGALLY BINDING AGREEMENT THAT THE PARTIES CAN LIVE WITH FOR THE DURATION OF THAT AGREEMENT.
An important part of achieving this objective is to come to the table prepared to discuss all of the issues of concern to the parties. This does not mean, however, that a contract is expected to cover every situation that might occur in the workplace during its term since situations may arise that neither party could have anticipated. The intent of bargaining is to create stability by precluding, to the extent possible and practicable, the need for continuous bargaining during the life of an agreement.
The materials in this training program have been designed both for individual use and for group training sessions. It is recommended that the materials be studied in the order that they are presented. This is partly to ensure that readers gain a complete knowledge of all aspects of the collective bargaining process. Another reason is that the keys to collective bargaining are cumulative meaning that each aspect must be learned and understood before an advocate is fully capable of proceeding to the next stage.
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PREPARATION FOR COLLECTIVE BARGAINING
There is no single approach to preparing for bargaining. The information contained in this section is presented as a workable example. Locals should feel free to rearrange the phases described here to best fit their needs. The important thing is that all the phases discussed here be covered in preparing for bargaining. These phases are: review; selection; activity; training; and pre-bargaining.
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Review:
Regardless of the length of time a bargaining relationship has been in existence, it is important to review the decisions of administrative agencies (e.g., NLRB, courts) to determine if there have been any changes in the definition of what are mandatory, permissive, and prohibited subjects of bargaining. Mandatory subjects are those subjects that both parties MUST bargain over and that may be pushed to the point of impasse (i.e., mediation or strike) if no resolution is reached at the table. Issues which typically fall in this category are wages, hours and working conditions. Permissive subjects are those subjects that the parties MAY agree to bargain over and often include items defined in the contract as "management rights". These items, however, may not be pushed, to the point of impasse if no agreement is reached at the table. Prohibited or illegal subjects should not knowingly be negotiated by either party. These are subjects which violate the law such as a provision condoning discrimination against women or minorities for day shift work. Each year, the National Labor Relations Board (NLRB) [The NLRB was established to enforce the National Labor Relations Act (NLRA). It has two major functions: (1) to conduct representation elections; and (2) to decide charges of unfair labor practices. The powers of the NLRB are remedial rather than punitive. This means that it can issue cease and desist orders but it cannot impose a penalty against a union or an employer found guilty of violating the law. The NLRB can petition the courts to enforce an order if a union or an employer refuses to comply.] and the courts resolve cases involving new and old issues proposed in negotiations to determine which of the above definitions applies. Consequently, someone representing the local or the international must monitor these decisions so that the status of any issue the union may want to propose is known, the response from management can be anticipated, and an appropriate response can be prepared.
The next step is to review other court and arbitration decisions to determine their impact on the current contract and on issues that both parties are likely to present at the bargaining table. For example, arbitration decisions involving contract interpretation set a precedent for the labor-management relationship for the duration of that contract. Depending upon the impact of such decisions, labor or management, or both, may want to make sure that the interpretations obtained in arbitration are: (1) incorporated into the new contract language; or (2) set aside with or without providing substitute language.
Court decisions, new laws or amendments to existing laws must also be monitored and evaluated for their impact in the scope of bargaining (i.e., the range of issues that can be legally negotiated) and on the strategy to be used at the bargaining table. For example, some contracts incorporate verbatim or by reference provisions of Title VII of the Equal Employment Opportunity Act (EEO), the Occupational Safety and Health Act (OSHA), or of other legislation affecting wages, hours and working conditions. Frequently, locals rely on the international union to supply this information by using legal counsel, consultants, and various reporting services.
An aspect of preparation that is often overlooked or not carefully attended to is to thoroughly review all policies, regulations, directives and memoranda concerning personnel policies, and any memoranda of agreement that the parties may have negotiated during the term of a contract as a supplement to it. All too often, these become obsolete, overlapping and/or inconsistent because of a failure to review, screen and delete such policies. Furthermore, a decision must be made whether to incorporate supplemental agreements into new contract language or to delete such agreements so that they have no further bearing on the labor-management relationship. Failure to do so can mean that past policies, practices and/or supplemental agreements may continue to hold sway under the new contract and may even be inconsistent with it. Another benefit of this review is that information contained in these documents may suggest an area that needs to be addressed at the bargaining table to solve problems, better represent employees, better protect the union's interests, and/or establish a consistent practice for the term of the new contract.
It is also important to understand and analyze recent collective agreements negotiated with your employer, In your industry, and in industries which directly impact on your employer's business. In addition to obtaining insight into what posture management may take at the table, this information may also provide idea for avoiding traps as well as for solving problem that will be useful in your relationship. The same advice applies to recently negotiated contracts in your geographical or local area for similar types of work. These contracts may provide important information on the market value of wages and benefits for bargaining unit employees and, thus, help to focus your preparation and expectations with respect to these issues. Caution should be exercised, however, not simply to copy other contract language verbatim without understanding the concessions that may have to be made to achieve it in your contract or its application to your bargaining relationship.
Another activity that can enhance preparation for bargaining is to talk to representatives of other unions that bargain with the same employer. These representatives may be able to provide valuable insight in a number of areas, including the: background, experience, and tactics of the employer's spokesperson; composition and dynamics of the employer's bargaining team; issues the employer feels strongly about; weaknesses and the critical needs (both practical and political) on the employer's side, etc.
If the upcoming negotiations are for a contract renewal (as opposed to a first contract) ALL grievances should be reviewed regardless of the step at which they were resolved. This review and analysis is important to identify the causes of grievances such as: (1) contract language; (2) supervision; (3) application of contract term; (4) working conditions; (5) internal union politics; etc. The information obtained from this review will be invaluable in identifying areas where the contract and/or management's interpretation/application thereof has caused problems for employees and/or for the union and in suggesting ways to correct these problems. Evaluation of this information is also important (for example, how frequently has a given issue been grieved?) in determining whether a problem exists that needs to be addressed at the bargaining table and, if so, what priority should it be given? Alternatively, the analysis may indicate that the problem is one that can best be corrected through another type of interaction between labor and management. Another critical element of this review is to analyze the point in the grievance procedure where resolution was achieved. For example, were most grievances resolved only through arbitration, or at some lower step in the grievance procedure? This information can be important in assessing both how well the design of the grievance procedures is working and the effectiveness of problem-solving in the labor-management relationship.
It is also of critical importance that the union obtains input from bargaining unit employees regarding proposals that they think should be made at the table. For unions, this is a political as well as a practical necessity. Depending upon such factors as size, resources, geographical dispersion, and whether negotiations are by plant or by company, different techniques or a combination thereof may be used by a union to gather this information. Some examples include: membership meetings; telephone surveys; written surveys; input from shop stewards and business agents; and delegation, committee or other group reports. It is wise to communicate with other unions at the plant or site. Obtain copies of their contracts, contract proposals and contract settlements. A larger union, such as for the production and maintenance workers, often sets a "pattern" for subsequent settlements.
In order to be useful, this information must be sought well in advance of the negotiations. This is essential to give the negotiating committee sufficient time to review, clarify, screen, prioritize, and research these proposals so that they are well prepared to advance membership interests at the bargaining table. It is recommended that the local president advise members that their proposals should be "reasonable" in order to most effectively represent them at the bargaining table. The officers, stewards/business agents for the union should also provide feedback to the negotiating committee on how the current contract has affected the union's institutional rights (e.g., items affecting the union as an organization such as time off for union business/conferences, dues check off, super seniority, etc.).
Last, but hardly least, financial data must be obtained, reviewed and analyzed as part of the preparation phase. Under the National Labor Relations Act (NLRA) as amended by the Taft-Hartley Act, and according to orders from the NLRB, employers and unions are required to exchange all information relevant and useful to the collective bargaining process. From the duty to bargain collectively, imposed by the NLRA, has been derived the obligation of an employer to provide relevant information that has been requested by a union so that it can effectively perform its representational responsibilities as the exclusive bargaining agent for employees in the bargaining unit [ Most, but not all, International Union, UPGWA locals fall under the jurisdiction of the NLRA.] The union's right to such information extends only to that information which is relevant to the performance of its functions as the exclusive bargaining agent. The burden is on the union to demonstrate that the information requested is necessary and relevant. However, if the information pertains directly to one of the mandatory subjects of bargaining, the NLRB usually has ruled that such information is relevant. In such instances, an employer's failure to disclose information requested may breach the duty to bargain in good faith and thus constitute an unfair labor practice. The following are examples of relevant information:
Wage data - wage history of employees, number of hours worked at straight time and at overtime rates, wage rates, employee benefits, and information concerning the manner in which wages are set (e.g., wage surveys);
Time Studies - time study data used by an employer to determine wage rates. It should also be noted that, in some instances, unions conduct their own time study on company premises during working hours if the study is deemed essential. Yet another option is that the union will have participated with management in conducting the time study. In any case, such information should be made available to the union.
Wage methods, merit, and incentive and bonus programs - information relating to such programs, if any, should be made available to the union.
Insurance, Pension and Health Benefits - Pensions, health benefits and other group insurance programs are mandatory subjects of bargaining and, therefore, information concerning these benefits must be furnished to the union upon request. Employers must disclose the types of insurance coverage provided for employees, portions of premiums paid by the employer and by employees, copies of insurance and health plans, costs per employee and employee dependents for each new insurance benefit or each improvement in an existing benefit.
Job Classifications and Job Descriptions - These usually have a direct bearing on wages and must be revealed upon request. If written job descriptions are available, the employer must furnish these upon request.
Layoff - Information on layoffs is considered relevant especially in situations where a layoff is currently in existence, has occurred or is about to occur and if the information requested relates to a decision to terminate unit jobs, to the method by which employees will be laid off, or to the effects of reductions and policies of rehiring upon employees.
Training data - Such data is also included in the definition of wage-related information.
Equal Employment and Safety Data - Is relevant if it can be shown as essential to reveal possible discrimination or unsafe conditions ["Contract Negotiations: Private Sector," a training program prepared and presented by the George Meany Center for Labor Studies, (November 15-20, 1987) pp. 1-3].
It should also be noted that, under the NLRA, an employer can be required to open its books if it claims inability to pay in negotiations. There are two trends that should be noted in this respect: (1) even where employers have claimed inability to pay and have been ordered to open their books, this has been a very difficult order for the NLRB to enforce; and (2) where labor-management cooperation schemes are in place and have worked relatively successfully, an integral part of this process has often been for the employer to open its books to the union/employees even during the life of an agreement.
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Selection of Bargaining Team:
The selection phase is concerned with the composition of the bargaining team. Participation on the team may be decided in various ways which include selection by the local president and election by the membership. The outcome determines not only who will sit on the bargaining team, but also what interests and expertise must be represented for practical and political reasons. An assessment will also have to be made to determine whether or not to include people from outside the local on the bargaining team. Such persons may include: a representative of the international; outside counsel; and consultants. All team members must understand that the spokesperson will do most of the talking and that their role is to provide expert advice on certain matters. Attributes to look for in selecting team members include:
Listening and communications skills
Knowledge of the bargaining relationship
Expertise in key subject areas like finances, safety, etc.
Time and commitment to participate
Note taking ability
It is also of the utmost importance that the team be able to present a united front at the bargaining table. As tempting as it may be at times to use upcoming negotiations as an opportunity to air political differences within the union, the best advice is to put these aside until the contract has been negotiated or to resolve these differences before entering negotiations. Persons selected to participate on the bargaining team must also be available to meet for unspecified periods of time both with their own team and with management and committed to the bargaining process.
A spokesperson must also be selected. This is the person who will control the team and the negotiations, and has the authority to make commitments at the bargaining table. Efforts have been made to study the characteristics of good negotiators, but no ideal formula has emerged. It appears that good interpersonal, communications, and listening skills are a must as well as an ability to read people and to recognize cues, to have a sense of timing, to be tough enough to handle what the role entails, but still be sensitive enough not to block out input that could be worthwhile, to have the capacity to grow and change without being a chameleon, to be able to make the commitment to devote unlimited time to the process, etc. Suffice to say that good negotiators a rare find and neither experience with text books nor on the job necessarily provides the qualifications to be a good spokesperson.
The size and composition of a bargaining team varies with the organizations involved, the level of bargaining, and the sector of the economy. A standard guideline where team size is concerned is to keep the number of participants to the minimum necessary to provide the expertise required. The larger the bargaining team, the more opportunities there are for management to engage in divide and conquer tactics, and the more difficult it may be to reach agreement. Participation in negotiations also should not be viewed as simply a way to get time off from work.
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Pre-Negotiation Activity:
This is the phase where the results of the review and selection processes are used as the raw materials to develop proposals and other information to be presented at the bargaining table. The bargaining team must screen the information gathered in the review phase and determine how this input should influence the demands the union makes (and may influence management positions) at the table. Priorities must be established and then the work begins to correlate supporting data and other interests with the list of proposals that will ultimately be submitted to management. It should be recognized that both parties may have to include in their list of initial proposals, item they know they cannot (and sometimes do not want to) achieve but must present for political reasons (e.g., to appease a rump group in the union, stockholders, or certain external interest groups that may have an influence on the positions of the parties).
Proposals and counter-proposals must be formulated in support of the union's position as well as in response to anticipated management positions. A valuable source of information for this activity, especially for unions with limited resources, is the Contract Clause Finder; a reporting service available from the Bureau Of National Affairs, Inc., Washington, D. C. As in the case of language obtained from other contracts, information from this source is a resource, not a quick way to get the job done without carefully thinking through the implications of proposed contract language and tailoring this language to meet your specific needs.
In order to develop proposals and counter-proposals, the union must decide what its optimum and bottom line positions are on each issue. The optimum is what you would like to achieve; the bottom line is the minimum you must achieve in order to secure membership ratification. Proposals and counter-proposals serve several purposes. These include: providing the parties with flexibility to negotiate after initial proposals have been exchanged; having ready responses so that time and momentum are not lost in negotiations; and using counter-proposals as a strategic device to aid in altering the other party's expectations about the outcome of holding to a given position.
One of the major errors that is often made in preparing proposals and counter-proposals is the failure to develop a rationale/justification for each. If the union is going to make demands at the bargaining table, then it should be prepared to justify them. Similarly, the union should expect that management will make demands and request that these be justified. It is a waste of both time and credibility to go to the table with a long list of demands that cannot be supported in terms of the needs of employees and/or the union.
It is also important to insure that the various proposals make sense and are internally consistent when they are combined in a total package that will be a contract. For example, a proposal that seniority shall prevail in all decisions concerning vacations, promotions and layoffs would be inconsistent with another proposal stating that preference in selecting vacation time shall be given to employees who have worked the greatest amount of overtime.
Every effort should also be made to draft proposals in clear, unambiguous language that is specifically tailored to fit the purpose of the proposal. Additionally, a contract is a layman's document and must be written in plain language understandable to ALL those affected by its terms and conditions. By following this guidance, you will also avoid problems later in contract administration and better serve membership interests.
Obtaining financial data and understanding how to cost out proposals are key parts of this phase. For many years, unions often relied upon management to do this homework. In today's bargaining environment, unions that persist in this practice may find themselves at a disadvantage at the bargaining table. It is imperative, therefore, that unions develop in-house costing capability or to hire outside consultants to provide this service to them. Assistance in gaining insight into costing techniques can be gained from various sources. These include: Michael. H. Granof, How to Cost Your Labor Contract, (The Bureau of National Affairs, Inc., Washington, D. C., 1973); Stephen J. Holoviak, Costing Labor Contracts and Judging Their Financial Impact, (Praegar Publishers, New York, 1984); W. D. Heisel and Gordon S. Skinner, Costing Union Demands, (IPMA, Chicago, 1976); and Gene Daniels and Kenneth Gagala, Labor Guide to Negotiating Wages and Benefits, (Reston Publishing Co., Inc., Reston, Virginia, 1985). There is also computer software available for general costing information.
The following checklist is provided to insure that all bases have been covered during the activity phase:
What is the purpose of each proposal?
What is the practical effect of each proposal?
What are the mechanics necessary to implement each proposal?
What is the cost (direct and indirect) of each proposal?
What does the proposal mean?
What are the implications of the proposal in terms of fairness and consistency with other proposed contract terms?
What are the chances that the proposal will be accepted by management and at what cost in terms of concessions?
What are the indications that the proposal will be workable if accepted as part of the contract?
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Training the Bargaining Team:
The training phase begins as soon as the team and the spokesperson have been selected. Members must be educated about the team's objectives, priorities, methods of operations, its proposals and strategies, assigned roles in the process; asked for input; and alerted to the strategies and tactics management is likely to employ. The spokesperson must assess and try to resolve any problems that may arise in controlling the union team and in relating to counterparts on the management side of the table. If time and resources permit, role playing mock bargaining sessions for practice may be useful; including video taping and critiquing these sessions. Role playing is useful not only in building skills and confidence, but also to illustrate and understand both union and management strategies before going to the table and to control messages sent through demeanor and body language at the table. Team members should also be alerted not to get so caught up in the games that may be played at the table that they forget about the objective; to achieve a mutually acceptable, legally binding collective bargaining agreement.
Pre-Bargaining Conference:
If time and circumstances permit, it is recommended that the labor and management team meet together in a pre-bargaining conference. Such conferences may, if properly used, establish a general approach to negotiations and get many preliminary items off the table. One of the issues that may be discussed in a pre-bargaining conference is unresolved grievances. While it is not recommended that parties come to the table with a number of outstanding grievances, sometimes this is the case. If these grievances have not been resolved before hand, this may be the place where the issues will be settled, rather than having them spill over into the contract negotiations.
Another issue that may be discussed in a pre-bargaining conference is team size; especially in negotiations with the Federal government. While it is true that neither party has a legal right to dictate the size or composition of the other party's bargaining team, sometimes negotiators can reach agreement on who is essential and who is not and pare bargaining teams down to a workable size.
There are several other purposes that a pre-bargaining conference may serve. It may be the occasion on which participation by observers is resolved. The authority of the spokespersons to make commitments may be clarified. Scheduling at reasonable times and accessible locations can be arranged. Initial proposals of the parties can be exchanged and an agenda established for treating the matters contained on labor and management's lists of proposals. Guidelines for caucuses may be established. It is also important to attempt to reach an agreement about how relations with the media will be handled during negotiations. Good advice in this regard is not to bargain through the media. One person, usually the spokesperson, should be designated to deal with the media and the parties should agree that nothing of substance will be discussed until the job is done. It may also be possible to obtain understanding of what the parties intend impasse to mean and also on what will occur in that event (e.g., extension of the contract, invocation of mediation, deferral of issues to interest arbitration, etc.). Other items that may be discussed in pre-bargaining conferences can include: who will keep records and in what form (no tape recorders or stenographers should be present); time lines for review and ratification of the contract; which party, or both, will have the contract printed and pay the cost for this service; and which party, or both, will distribute the contract, when and how.
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THE COLLECTIVE BARGAINING PROCESS
Stages of Bargaining:
The bargaining process in most relationships evolves through four stages which can be described as: initiation of bargaining; establishing rapport; consolidation; and culmination. The atmosphere of bargaining during any one of these stages tends to vary depending upon the influence of a number of factors which include: the skill, tenure and tactics of the negotiators; the level of the negotiations; the stakes involved; and the amount of actual bargaining (i.e., give and take) that takes place. The behavior displayed by one or both parties may cover the gamut from rational exchanges to bellicose shouting matches.
Unless there is a requirement to the contrary, bargaining sessions are not usually open to the public [There are some jurisdictions in the public sector where state or local laws require that negotiations be open to the public. These are called "sunshine laws"]. There are several good reasons for this restriction. The temptation to play to the galleries can cloud discussion of the issues and force parties into the backroom to get their business done. Furthermore, when the press attends bargaining sessions, the risks magnify that clients represented by labor or management, or both, will become disgruntled unnecessarily by media items produced by reporters who are not knowledgeable about labor relations and/or who may not have stayed long enough to get the whole story.
When bargaining is initiated, the union transmits a written request to the employer to open negotiations. Subsequently, the union usually presents its demands first or the parties may simultaneously exchange their lists of demands for contract changes. Especially in today's bargaining environment, it is inappropriate to expect that the union is the only party that will make demands at the bargaining table. Experience with concession bargaining provides ample evidence to the contrary. Moreover, unions should not be lulled into believing that real or alleged economic constraints are the only reason why employers may engage in aggressive bargaining behavior. Examples of other issues that may arouse such conduct include: downsizing; efforts to achieve a union-free environment; contracting work out; work rule changes, etc. The union should address each management proposal with concern, but a counter-offer should not necessarily be made for every proposal.
At this stage, if it has not been determined in pre-bargaining conference, a time Limit should be set on the opportunity both parties have to present new proposals. If a Limit is not set, the flow of negotiations could be thrown off track at any time by raising such proposals. This can be especially harmful if it occurs close to the time that an agreement appears to be eminent. The new issues may be controversial and the deal in progress may be destroyed or the negotiations prolonged unnecessarily.
At the outset of bargaining, the parties often hold widely divergent positions on the issues. Frequently, outsiders do not understand the rationale for this posture, but there are good reasons which include: to provide the flexibility and room for movement to make trade-offs essential to the bargaining process; to account for changes (e.g., new economic data may become available, other contracts may be settled, etc.) that may occur during the term of negotiations so the parties do not give too much or too little; there are practical and ideological differences between the parties reflected in such proposals; etc.
The number of proposals presented by each party may vary from one contract to another. Factors that influence this number include: the size, heterogeneity and political characteristics of the bargaining unit; whether this is the first contract or a contract renewal; the degree of practical and political homogeneity on the employer's side; the level of negotiations; the duration of the contract; the extent to which negotiators on both sides have sufficient support and know-how to screen out trivial or impractical demands before coming to the table; and the existence of unique/innovative proposals designed to solve certain problems in a labor-management relationship.
After the initiation stage has been completed, the parties may take a recess to re-evaluate their proposals, those made by the other side, and to make adjustments in their strategy. If the parties have properly prepared for bargaining and, especially if a pre-bargaining conference has been held where initial demands have been exchanged, this recess should not take a great deal of time. In fact, the parties may want to agree upon a time limit for the recess (and for caucuses) at the table. If a unique/innovative proposal has been offered, one way of dealing with this matter without losing momentum in negotiations is to assign consideration of this proposal to a committee comprised of representatives of both labor and management. While the negotiating teams address other issues on the table, the committee can explore the proposal and report back to their bargaining teams on a periodic basis. It should be added that the committee is not normally empowered to make commitments on the issue.
The next stage in bargaining involves establishment of rapport, especially between the negotiators, and team members on both sides of the table. Any person knowledgeable in labor relations understands that negotiators are expendable. Certainly, persons lacking the interpersonal, communications and other skills and know-how to negotiate a contract, to maintain a united front at the table, and/or the health, stamina and commitment to go the distance can be a liability to a bargaining team. However, parties should not be hasty in replacing tenured negotiators with good track records. The rapport these persons have with negotiators on the other side can be an invaluable asset because: they know each other and have some idea of what to expect, thus reducing the time necessary to get acquainted; a level of trust essential to successful negotiations may have been established which can facilitate discussion of the issues and supporting information; and it is likely that cues will be more readily recognized and properly interpreted.
During the rapport stage, information is gathered by both sides. Frequently, the parties will go through all of the demands entered into negotiations and each party should ask the other to justify the proposals it has presented. In addition to the factual information imparted, each party may gain, for the first time: a preliminary idea of the priorities the other side places on items on its list of proposals and why; insight into the strategies that may be used to achieve these goals; and an appraisal of the opposing bargaining team as a whole and of individual members. As the rationale for proposals is explored, it is also possible that one or both parties may begin to modify their original positions.
While rapport is being established, this may also be the time when unreasonable or unworkable proposals submitted by either or both sides may be weeded out. Astute negotiators recognize that occasionally their counterparts may need their assistance to accomplish this task and, if possible, will be accommodating. There are some who believe, however, that unreasonable/unworkable demands should never reach the bargaining table because they will not be taken seriously and thus reduce a party's bargaining effectiveness. While these clearly are risks, if the negotiators are experienced and have rapport with their counterpart, they will usually recognize that such demands often have a political origin, must be given representation in order to be put to rest, and a time may come when they need to have the favor returned in the same or subsequent negotiations.
It is also possible during this stage that the parties will be able to resolve some issues on which agreement can be easily reached. Some issues may simply require a full discussion of the problem behind the proposal before both sides discover mutual interests in, and solutions for, the problem. For example, problems with equipment or safety may be raised that, once aired, may be resolvable by actions in or outside of the bargaining setting. Indeed, one of the positive strategies that is suggested for this stage of bargaining is to begin with the issues that are the least controversial (after those issues with the least economic cost) in an effort to establish a positive atmosphere and to build momentum, trust and rapport before tackling the issues over which there way be genuine disagreement.
During the consolidation stage, the parties will fully discuss the issues and present data and other information to support their claim and to rebut those made by the other side. Where a wage increase is requested, for example, a union may present various data that may include: analysis of industry wage trends; local and/or geographic wage trends; national price trends (e.g., inflation, cost of living, standard of living, etc.); and other supporting material. Likewise, the employer may present information to rebut these data such as: define the limits of the increased costs it can afford over the life of an agreement; detailed information on labor costs and pricing structures; competition in the industry; etc.
This is also the stage where both parties carefully probe in an effort to determine what the other side really wants and needs to reach a mutually acceptable agreement. Some movement on issues begins to occur and trade-offs may be made on items of little or medium importance on the lists of priorities. Also during this stage, the parties start to bargain on the basis of the inter-relationships among items on the table and to discuss them in term of a total package. Where economic items are concerned, the greatest concern for many employers is the total cost of wages and fringes. In many bargaining relationships, therefore, management may offer a sum of money to cover these costs and leave it up to the union to decide how it will be distributed. Thus, a union may have to bargain both internally to agree on an acceptable distribution and bilaterally with management to achieve changes in the allotment for wages and fringe benefits. The internal aspect of these negotiations should be conducted away from the bargaining table to insure that a united front is maintained when management is present.
It is also important to recognize that packages way also be prepared on non-economic items, and that negotiators should maintain flexibility to make trade-offs within and between economic and non-economic areas. For example, a union may be seeking an adjustment in longevity pay for long service employees (economic item) while management may counter that it may agree if the union will accept more frequent/stringent proficiency testing (non-economic item). Alternatively, management may indicate that it is more cost effective to contract out guard services, while the union may be able to respond with proposals that would make such action unnecessary or show that contracting out is potentially more expensive. Every effort must be made to draft proposed contract language in clear, concise and unambiguous terms so it is readily understandable to all parties concerned and minimize problems in administration.
Some items may be tentatively agreed upon in the consolidation stage. It should be clearly understood that these agreements: (1) are not binding until the entire package is agreed to; and (2) will not be put back on the table unless the parties fail to achieve a package deal. The most difficult issues may remain to be resolved during the culmination stage. By this time, the parties have an idea whether or not a strike or impasse is likely to occur over these issues. It is very difficult to generalize about what this information means to the parties in any given negotiations because of the significant differences in options available in the private, public and Federal sectors of the economy if an impasse results.
For the last several years, however, some of this disparity has been diminished because both unions and employers have recognized the reality that a strike is of declining utility. For example, unions have increasingly recognized that, by striking, they may be playing into management's hands to bust the union per se or by moving operations to another location, provide a reason to, or intensify efforts to, contract out work performed by bargaining unit members, and/or that a strike is counterproductive to the interests of both parties because neither will be in business when an outcome is reached. Although there are a number of employers that have taken very aggressive positions in bargaining, many also recognize the risks inherent in a strike in terms of maintaining a competitive position in an industry and in a global economy. It should also be added that, in today's society, dominated by adherents to the "me generation", a significant segment of the public has become even more intolerant than in the past of strikes that inconvenience their lifestyle regardless of the issues at stake.
Nevertheless, serious bargaining on the "sticking points" may not commence until one or both parties realize that a general as well as a specific cost of disagreement is about to be imposed. When this realization occurs, trade-offs on, and modification of, critical proposals usually becomes possible unless the issues are ideological and/or involve critical practical concerns to one or both parties. In this event, an impasse may result. Alternatively, the parties reach their bottom line and reassess them depending upon their expectations about the outcomes of an impasse.
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Communications Elements of Bargaining:
Communications in a bargaining setting involve both verbal and non-verbal transmissions. There are several observations and suggestions that can be made in this area. To illustrate both of these types of communications, recall the real life situation in the United Nations when Kruschev took off his shoe and pounded it on the table. For the uninitiated, it may seem that the best way to get what you want in bargaining is to be belligerent and act tough (e.g., tell the opposing party in no uncertain term what you think of them and their demands). If you should choose to adopt this behavior, the chances are that your counterpart on the other side of the table will readily recognize that you are inexperienced in bargaining, that you are not well prepared, or do not have a strong position to advocate. There is an old adage among lawyers that aptly sums up the situation. If you know the law, pound on the law. If you know the facts, pound on the facts. If you do not know the law or the facts, pound on the table. Although "Winning Through Intimidation" may have netted its author considerable financial rewards, you should recognize that there are tremendous costs that may be paid for adopting this method of communication at the bargaining table. If you persist in pounding on the table or another advocate, the best immediate result may be that the negotiations will be unnecessarily protracted or, at worst, that the possibilities for a settlement will be foreclosed. Furthermore, parties to a collective bargaining agreement have to live with each other on a daily basis. As a consequence, conduct at the bargaining table may have a spill over effect on the on-going relationship between the parties and also influence the approach your counterpart takes in subsequent contract negotiations.
In terms of oral communications, therefore, some useful guidance includes the following:
Avoid personal attacks against members of the opposing team, as well as against members of your own team;
When you disagree with a proposal or think an idea is ridiculous, thank the person for their input and then simply and clearly state the reasons why you disagree;
When you are asked for a response, do not be coy or snide. State your answer, if you have one, or ask for additional information or time to consider the proposal;
Keep your cool. Do not respond to badgering or to the use of bad language in kind. Simply repeat your point as often as necessary until the other party gets the message that you are not going to play his/her game. If the negative behavior persists, inquire if a 5-minute recess would be useful to gain a new perspective on the situation;
Semantics are an important part of oral communication. That is, what do you really mean, what is the real intent of what you are saying. An advocate may believe that his/her intent is clearly understood at the table when, in fact, this is not the case. Before you make or accept a proposal, restate what the agreement is as you understand it and see if your counterpart agrees;
Use caucuses effectively to compose yourself, clarify your thoughts, and reposition your bargaining stance.
Oral communications are only one part of the communications process at the bargaining table. The body language of the spokesperson and of bargaining team members also conveys important messages to the other side. Body language includes a number of things such as: eye contact; posture; facial expressions; various indices of nervous versus calm behavior (e.g., smoking, perspiration, other nervous ticks); frequency and manner in which notes are passed, etc. As indicated previously, it is important to school bargaining team members in the impressions they convey through body language before negotiations begin and during, if necessary. Similarly, it is important for the spokesperson to remember that conflicting messages may be sent if he/she and/or members of the bargaining team say one thing but their body language reflects something else. At best, these mixed messages may confuse the other party and, at worst, they may sabotage the credibility of your bargaining position.
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Dimensions of Bargaining:
Most of us conceive of bargaining as a bilateral process (i.e., two party negotiations). Clearly, the horizontal relationship between the parties, across the table, is an important element of collective bargaining; but it is not the only element that is pertinent to this process.
There are also vertical dimensions of bargaining that involve negotiations with upper and lower levels of constituents. Where a union is concerned, this means negotiations with the rank and file and with representatives of the international union to settle on proposals to be submitted at the table. Another dimension of bargaining is the internal negotiations. These negotiations occur within a bargaining team before and during contract negotiations to achieve and maintain a united front at the table.
External dimensions of bargaining involve the influence, if any, that community and special interest groups may have on the bargaining process even though these groups are not represented at the table. Examples of such influences may include: other unions that may be bargaining with the employer at the same time; pressure from a political or religious figure to save jobs/attend to work welfare; and other companies in the industry that are about to enter negotiations and are reviewing bargaining/settlement patterns.
Concepts and Strategies:
There is no "model" of collective bargaining since no two negotiations are alike. However, there are some general concepts and strategies that may be useful aids in any bargaining process. The most important of these is to never lose sight of the objective. The overall objective is to achieve a mutually acceptable contract that both parties will be able to ratify and that they can live with for the duration.
As discussed earlier under preparation, each of the parties should develop proposals and counter-proposals on each issue. The proposals should be fashioned to represent your objectives, first, in the most optimistic terms, then in realistic terms and, finally, the bottom line (i.e., the absolute minimum position that can be accepted). These proposals not only serve to maintain momentum in negotiations, but also guide the spokesperson regarding goal attainment on individual issues. Then, the interrelationship among all proposals should be checked to make sure that there is internal consistency among them for any total package (contract) that may be agreed upon.
From a union perspective, the objectives defined by each proposal and by the total package must also be checked to insure that they meet constituent needs: (1) membership needs for acknowledgement and attainment of what may be diverse and sometimes conflicting interests on substantive issues; (2) bargaining team needs, politically and practically, to represent various interests in the union; and (3) leadership needs for political survival and to protect the well-being of the union as an institution. It cannot be stressed strongly enough how carefully membership needs must be assessed since the membership has the ultimate power, through ratification, to affirm or deny all of the efforts that have been made at the bargaining table.
In constructing proposals, it must not be forgotten that the employer also has needs. In addition to satisfying the political and practical needs of the bargaining team, the management negotiators may also be concerned about satisfying top management, stockholders and the public. A constant vigil must be kept throughout negotiations to insure that the needs of both labor and management are met as proposals are modified and concessions are made, if the end result is to be an acceptable contract.
Whenever bargaining is discussed, there is a strong temptation to limit inquiry to how can one party most expeditiously get what it wants. However, collective bargaining is much more than "looking out for number one". It is a mutual gains process that involves a relationship between people and organizations that extends well beyond the bargaining table. Therefore, some useful and positive guidance on strategy for negotiators includes the following:
Negotiations involve a series of compromises and trade-offs. Come to the table prepared to engage in this process.
Learn as much as possible about the other party's spokesperson and team members (e.g., background, experience, strengths and weaknesses, special interests).
Keep discussions flowing. Ask questions that require more than yes or no answers. If a sticking point arises, move on to other issues.
Stress areas of agreement to set and maintain a positive tone.
Frankly and unemotionally discuss areas of disagreement.
Do not gloat if you obtain a concession.
Do not be provoked into settling for something you do not want and know you cannot sell to your constituents.
Try to sell your objective to the other party rather than brow beating them into accepting it. Use the evidence you have to support your proposal and your selling skills to change the other party's expectations about the outcome of the do/don't agree. Do not, however, oversell your proposal or your commitment. This may gain you short-run success at the bargaining table at the expense of a significant failure in the ratification or contract administration process.
Be prepared to justify any proposal you make and require the other party to do the same before you defend your position.
Use caucuses wisely and do not abuse these opportunities by either calling caucuses too frequently or usurping an unreasonable amount of time.
Always provide copies of any submissions for all team members on both sides of the table.
Date and identify each submission or proposal to avoid confusion with employer proposals and later proposals on the same issue. For example, at top of page, put "Union Proposal Re Overtime" and the date. At the bottom of the page you could put the initials of the preparor, the typist and the date. For example, "HEA/gf 2-4-89".
Keep the discussion on track. Do not waste time and energy by digressing into war stories or other matters that have no bearing on the negotiations. This includes putting aside old grudges.
Do not try to rush the other party through its presentation on any proposal. Listen carefully and take notes. Overcome the tendency to anticipate what is going to be said, so that you do not miss what is actually said.
Initial each contract provision agreed to.
Although the mystique of marathon sessions is legend, these should be avoided unless real progress is being made and the momentum should not be broken. Too frequently, unnecessarily long sessions result in poorly thought out concessions and hastily prepared contract language that causes problems and unnecessary expenses in contract administration.
Avoid getting trapped into one-to-one trade-offs.
Keep accurate notes of each negotiating session and retain all copies of original proposals and changes that are made so the evolution of contract language can be tracked for contract administration purposes.
As a final note, it is imperative that the parties not leave the bargaining table until all agreed upon provisions have been signed off in writing. Negotiators who fail to adhere to this advice are inviting trouble for themselves, the bargaining team, and for the relationship between the parties. Items may be overlooked and/or one of the parties may subsequently forget, change its mind, or deny that the provision was agreed to at all. As a result, the relationship between the parties may be damaged, negotiations may be unnecessarily extended, unfair labor practice charges may be filed, and/or an impasse may ensue - all of which could have been avoided by properly bringing the bargaining process to closure.
This discussion would not be complete if it did not alert negotiators to the games people sometimes play at the bargaining table. It is strongly emphasized, however, that this is information not encouragement. Furthermore, the following is a representative, not an exhaustive, list of such games:
"Gotcha" - use of a trivial error or mis-statement to belittle or discredit a proposal or the sincerity of a negotiator.
"Snow Job" or "Expertise" - use of confusing or unnecessarily complicated figures, graphs, language, etc. in an attempt to overwhelm or intimidate the other party.
"So what" - used after a concession has been made and is intended to leave the impression that the concession is unimportant, regardless of its actual value.
"Wheat and Chaff" - mixing of priority and non-priority items in an effort to make the other party believe that you want 'x' when you really want 'y'.
"Wooden Leg" or "Rock and a Hard Place" - making compassionate statements which lead the other party to believe that you would really like to agree to their proposal if only superiors, constituents, whom or whatever would allow you to do so.
"Sand Bagging" - feigning weakness, lack of experience, expertise, etc. in order to catch the other party off guard or unprepared.
"Boredom" - feigning boredom, usually done when the other party is trying to make an important point.
"Yes, But" - appearing to agree, but actually disagreeing and/or attaching additional conditions.
"If It Weren't For You" - attempting to deflect attention from your own weaknesses/short-comings by transferring blame/responsibility to the other party for a problem, lack of settlement, etc. that you share or are responsible for.
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The Role of Mediation:
There is agreement among most labor-management practitioners that the best contract is one that the parties have settled themselves. When a settlement is not forthcoming, there is a tendency to assume that a strike will result. This is often an erroneous assumption, first, because a strike is only one of several alternative ways to resolve impasses. Second, in today's political and economic environment, election to strike must be carefully considered because of the declining and dysfunctional utility of this means of impasse resolution.
In accordance with public policy and otherwise, mediation is one of the alternatives to a strike that has been widely accepted (particularly in the private sector) by labor and management. In the private sector, the policy supporting mediation appears in the NLRA, Taft-Hartley amendments, Section 8 (d) (3). Accordingly, the parties must provide written notification to the Federal Mediation and Conciliation Service (FMCS) and to any appropriate state mediation agency of negotiations for contract renewal in all instances that affect interstate commerce where such negotiations could result in a strike or a lockout. Such notification must be made within 30 days of the date one party notifies the other that it is requesting that negotiations be opened.
Additionally, the SPFPA Handbook and Guide for Handling Grievances provides important information regarding the timing of requests for negotiations and for mediation. Please read the following information carefully
Contract and Mediation Notices
One of the most important duties and responsibilities of Local Union and Unit officers is to make certain that all contract and mediation notices are given properly and timely. The failure to give a proper and/or timely notice can result in automatic extension of the contract for one year or more, an unfair labor practice charge by the employer, or an illegal and unprotected strike.
Section 8(d) of the National Labor Relations Act, as amended, contains the following requirements:
1. At least sixty (60) days prior to the contract expiration date, serve the employer with a written notice of proposed modification or termination. For "health care institutions" (i.e. hospitals) the notice must be sent at least ninety (90) days in advance.
2. Offer to meet with the employer for the purpose of negotiating a new or amended contract.
3. Notify the Federal Mediation and Conciliation Service and the applicable State mediation agency within thirty (30) days of the sixty (60) day notice that a dispute exists. For "health care institutions" (i.e. hospitals) the notice must be sent at least sixty (60) days in advance.
4. The parties must refrain from strike or lockout for a period of sixty (60) days after notice or until the expiration date of the contract, whichever occurs later.
It is a good practice to send the "60-day" and "30-day" notices at the same time.
All notices should be sent by certified mail, return receipt requested.
The "60-day notice" period is computed by counting the day the notice was received by the other party as the first day of the period. Do NOT cut the notice short. It is good practice to allow at least 65 days.
Become familiar with the duration and termination provisions of the contract. In addition to the 60-day and 30-day notices required by the law, any special requirements in the contract must be complied with. If the contract specifies a 70-day notice, such notice must be given. On the other hand, if the contract specifies a 40-day notice, the 60-day notice required by law must be given. Also check for any special provisions regarding the form of the notice, where it is sent and how it is sent.
There are two other NLRA provisions regarding mediation that are also worth noting. Section 203 (b) of Title II states that:
The Service may proffer its services in any labor dispute affecting commerce either upon its own motion or upon request of one or more of the parties to the dispute, whenever in its judgment such dispute threatens to cause a substantial interruption of commerce.
It should be understood from this language that the FMCS does have latitude to intervene of its own volition in certain labor disputes. Moreover, the NLRA has endeavored to make it clear to parties that they should take mediation seriously. Section 204 (a) (3) states:
In order to prevent or minimize interruptions of the free flow of commerce growing out of labor disputes, employers and employees and their representatives, in any industry affecting commerce, shall ...
(3) in case such dispute is not settled by conference participate fully and promptly in such meetings as may be undertaken by the Service under this Act for the purpose of aiding in the settlement of the dispute.
Similarly, in the Federal sector, the Civil Service Reform Act of 1987 (5 USC Title VII) gave the FMCS the first bite at the apple in the event of an impasse in negotiations. Accordingly, Section 7119 (a) states:
The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what manner it shall provide services and assistance.
Mediation is an informal process. It has frequently been described as an extension of collective bargaining because control over any settlement that may be forthcoming remains in the hands of the parties. A mediator is a neutral, outside third party who enters a dispute to try to help the parties reach agreement. It should also be noted from the outset that a mediator does not have the authority to force the parties to agree or to impose a settlement on them. The following is a listing of some of the functions a mediator may serve in helping to resolve a dispute over negotiation of contract terms:
Describe the mediation process if the parties are unfamiliar with it.
Determine whether an impasse exists or what the parties really need is assistance in bargaining.
Suggest new ways of looking at issues and resolutions.
Persuade, encourage, and empower.
Enhance, facilitate, and direct communications between the parties.
Assist the parties in developing a habit of agreement in an effort to restore momentum to the negotiations.
Provide advice on the timing of proposals and counter-proposals.
Help to avoid personal attacks and emotional outbreaks that can cause a crisis in negotiations.
Assist in exploring avenues of accommodation by making "Supposals" (e.g., one party may want to gauge the receptivity of the other to a proposal without tipping its hand, making a formal proposal, or jeopardizing its bargaining posture).
Facilitate meetings when the parties believe that calling a meeting themselves may be seen as a sign of weakness or be prematurely interpreted as a change in bargaining posture.
Assistance in structuring proposals and counter-proposals to maximize receptivity (i.e., place emphasis on the positive).
Assist the parties in putting items together into packages.
Help handle intra-union and intra-employer problems by relieving the parties of the responsibility for being the initiator of certain proposals (i.e., the mediator acts as a scapegoat).
Suggest ways to enhance the chances of ratification (e.g., use of committees in negotiations, avoid stating fixed goals especially in the media, get tentative agreements in writing, etc.).
When should mediation begin? There have been instances where parties would like to have a mediator present continuously from the outset of negotiations or shortly thereafter. The rationale is that the mediator will contribute something from the beginning, primarily procedurally and to facilitate communications, and thus help avoid an impasse. Additionally, if an impasse does develop, the mediator would be fully apprised of all the nuances of the situation and ready to act immediately. Nevertheless, this approach is not generally recommended because too familiar and too long involvement with the parties way diminish a mediators effectiveness, lessen his/her ability to take aggressive steps, and increase predictability while decreasing the ability to be taken seriously.
In contrast, there are parties that wait until an impasse arises or even until a strike occurs to call in a mediator. This too may not be the best approach to effective use of mediation. At these junctures, the positions of the parties have hardened making mediation a more difficult task, new issues may arise as a result of a strike complicating the chances for resolution, and the array of options normally available to a mediator may be diminished because of the conflict or near conflict situation.
The best suggestion is, therefore, to seek mediation assistance when the principal negotiators begin to feel that the negotiations are in trouble or, put another way, to help avert a crisis about to happen.
The final matter that will be addressed here is a description of some of the things that may occur during a mediation session. You must recognize that mediation is not a stylized sequence of events. Rather, the process changes according to a number of variables like the mediator, the parties, the nature and timing of the dispute, the potential consequences of the dispute, etc. With this understanding in mind, the following are some of the elements of a mediation process:
Meet the negotiators and bargaining teams. Learn first names and assess their styles, personalities, group dynamics, etc.
Acquaint parties with the mediation process.
Joint review of the status of the case (e.g., what issues have been settled) may provide new insights to the parties and is essential to educate the mediator about the dispute.
Separate meetings may be held to gather more detailed information about the positions of the parties and their "real" priorities.
Side bar meetings may be held among the mediator and the principal negotiators for each party.
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Conclusion:
The collective bargaining process has laid the foundation for labor-management relationships for many decades. However, this process is not self-sustaining. Bargaining requires commitment, time, diligence, skill, and innovation to produce workable and responsible results that the parties can live with and prosper.
Union representatives must learn how to effectively use this process to provide members with the quality representation they deserve and that is essential for unions to succeed. The information provided here is a starting point in achieving this goal. Educational endeavors must be nurtured and expanded if union representatives are to attain excellence in competing and cooperating effectively in today's labor relations environment. Realizing this objective is not a matter of instant gratification; you have to earn it and with it the self-esteem, dignity, and recognition that American workers deserve.
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