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People Who Bargain

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1. Union Representatives 2. Management Representatives

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Union Representative

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National agreements - large negotiating teams Team members represent different levels of the union Local agreements - comprised of ex-officio members, a chief steward or grievance committee member Craft unions include business agent Industrial unions include international representative Final settlement usually must be approved by membership

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Management Representative

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Top management, including policy makers, labor relations staff, and some line executives Labor relations adviser and negotiator used for multi-employer bargaining

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Negotiating Skills

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Personal integrity courage set clear objectives don't hurry be prepared remain flexible Listen actively control emotions

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Bargaining preparation

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Analysis Planning

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Analysis

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data is gathered and bargaining items are identified NLRA provides that bargaining shall include rates of pay, wages, hours of employment, and conditions of employment 3 categories of bargaining subjects - Borg-Warner

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Planning

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Anticipate issues critical to both parties Prioritize objectives & establish realistic settlement ranges Prepare overall strategy for negotiations that reflects the needs of both parties Develop an agenda that arranges issues in a logical order for discussion Incorporate in written ground rules

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Mandatory Items

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a party may insist on its inclusion and the other party cannot refuse to discuss it ex. rates of pay, wages, hours of employment, holidays, vacations, pensions, severance pay, insurance, and drug testing

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Permissive Items

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a party must withdraw itself from bargaining if the other party does not voluntarily agree to discuss it ex. management right to union issues, scope of bargaining unit, including supervisors in the contract, use of the union label, settlement for unfair labor charges

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Illegal Items

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violates public policy or inconsistent with NLRA ex. Featherbedding, whistle-blowing, discrimination race, creed, color, religion, or national origin, interfering with union affairs or officials, closed shop, separation of employees by race.

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Borg-Warner Case

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1958, Supreme Court ruled what is mandatory, permissive, or illegal. Mandatory test: 1. issue has to be plainly germane 2. issue cannot be a managerial decision that lies at the core entrepreneurial control.

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Featherbedding

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the practice of a labor union requiring an employer to hire more workers than necessary for a particular task.

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Separability clause

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A contract clause stating that any portion of a contract declared invalid by state or federal law shall be declared null and void while still holding the remainder of the contract valid.

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Sources of bargaining issues

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Surveys solicitation at general union meetings meetings with union stewards questionnaires

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Bargaining process

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1. Preparation 2. Bargaining 3. Resolution

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Bargaining Stage

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1Ground rules established by parties Where, when, how often, and how long to meet Size of bargaining teams Each side designates a leader 2 Exchange initial proposals Separate economic and non-economic issues

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Posturing

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monologues wherein both parties present demands Common aspects of bargaining that may be anticipated include: Interdependence Concealment of real bargaining objectives from other party Packaging items Throwaway items Caucusing Flexibility Compromise Saving face

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Exchange of proposals and counterproposals

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Usually get quick agreement on less important non-economic items Bargaining on economic items typically involves packaging

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Point of crisis - agreement cannot be reached

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Mediation or arbitration available to help reach agreement "The crunch" - point of no return when both sides realize that some deadline will cause no decision to become the final decision Signal that it is time for a decision or impasse

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Pressure Bargaining

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If it costs more for a party to disagree it will agree Tactics of pressure bargaining: 1. Good guy/bad guy 2. Highball/lowball 3. The nibble 4. Chicken 5. Awfulisms

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How to deal with pressure tactics

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1. Ignore them 2. Acknowledge and discuss 3. Respond in Kind 4. Befriend the other party

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Impasse

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A stalemate occurs in negotiations between union and management over the terms and conditions of employment. Impasses are often resolved through mediation or arbitration

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Employer can unilaterally mandatory terms and conditions of employment actual deadlock in good-faith negotiations

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1. background of relationship between parties in negotiations 2. willingness of parties to negotiate 3. extent and frequency of bargaining sessions 4. integrity of bargaining demonstrated good/bad faith of the parties

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Strike

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A work stoppage by a number of employees caused by a disagreement with management over certain issues such as contract negotiations, grievances, or unfair labor practices.

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Tentative agreement

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Must be ratified by union membership in secret-ballot vote

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Contract - written form of negotiated agreement

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May encounter problems on agreeing to language that reflects agreement

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reasons for a stalemate

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Interests of parties have not been reconciled One party has no intention of settling Union membership rejects proposed contract

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Options when impasse occurs

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Third-party intervention Continue the old contract on day-to-day basis Lockout staged by employer Strike called by the union

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What unions look at when calling a strike

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Union must weigh cost of a strike versus probable benefit Unions less likely to call a strike today than in past years Strike means loss of wages and benefits, especially health insurance Strikers not entitled to food stamps Replacement workers may be hired

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Possible Management response to a strike

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Prepare a strike plan that may entail: Shutting down operations during strike Continuing to operate using management personnel Hiring replacement workers

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Types of strikes

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1. Primary 2. Economic 3. unfair labor practice 4. Rolling

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Why strikes occur

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Accident model - strikes occur due to bargaining process errors Joint strike costs - strikes occur when joint costs to both parties are relatively low Rational tactics - two parties have different information

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Primary Strike

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strike between an employer and employees

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Economic Strike

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called to affect the economic settlement of a contract under negotiation ***Employer does not have to reinstate employee if they filled the position with a permeant employe during strike!!

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Unfair labor practice strike

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called to protest an employer's violation of the NLRA Economic strike may become an unfair labor practice strike

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Rolling Strike

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targets one location of an employer at a time for a union walkout Location can change daily

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Mackay Doctrine

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Economic strike - strikers not entitled to reinstatement if their jobs have been filled with permanent replacements Job can be reclaimed if it is vacant or if permanent replacement leaves Unfair labor practice strike - strikers entitled to reinstatement even if the position has been filled Striker misconduct can disqualify worker from reinstatement ***Employers more willing to hire permanent replacements; or use them as a threat to prevent a strike Workers on strike for over one year are not eligible to vote in a decertification election

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Permanent Striker replacement

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Worker retains protection of the NLRA under both economic and unfair labor practice strikes

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Strike settlement agreement

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If employer has hired permanent employees union might want to negotiate this, so they cannot be decertified.

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Illegal Strikes

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Strike undertaken by unlawful means or purpose are not legal, and employees can be fired. Unlawful means of conducting a strike include : 1. Sit-down strike 2. Wildcat Strike 3. Partial Strike 4. Sickout

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Sit-down strike

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takeover of employer's property

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wildcat strike

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does not have approval of the union Violates a no-strike clause in existing contract

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Partial strike

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various job actions that violate employer's property rights ex. work slowdown, refusal to work overtime

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Sickout

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organized effort to have workers call in sick

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Unlawful goals that make a strike illegal

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Jurisdictional strike - dispute between unions over entitlements to work Featherbedding strike - pressure employer to make work for union members Recognitional strike - attempt to gain recognition for another union if a certified union already represents workers

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Picketing

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Varies according to type of union Craft unions - small number of pickets to inform members of other craft unions that a strike is in progress Industrial unions - requires active and large number of pickets Intended to discourage unskilled laborers from keeping production lines in operation

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Prominent US strikes

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In various industries - telephone, steel, airlines, coal mining, Major League Baseball In various companies - Eastern Airlines, General Motors, United Parcel Service, Comair

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Lockout

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Employer may withhold employment during a labor dispute to resist union demands Defensive lockout - justified if a threatened strike caused unusual economic loss or operational difficulties Offensive lockout - used to end labor dispute on terms favorable to employer Use of replacement workers Same rules apply as those for strikes

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Telescabbing

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using modern technology as a substitute during a union strike instead of hiring scabs.

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No strike, no lockout provisions

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Contained in most collective bargaining agreements Unconditional bans Conditional bans Exhaustion of grievance procedure Violation of arbitration award Refusal to arbitrate dispute Noncompliance with portion of agreement Deadlocked contract re-opener Attractive to industry

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Resolutions to an impasse

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Mediation - brings parties together to keep them talking, meeting Third party, has no authority to end the dispute 2005 FMCS survey of union/mgmt. leaders: mediation in greater demand today due to polarization of sides Interest arbitration - third party (arbitrator or panel) makes final and binding decision on the details of the final collective bargaining agreement

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Resolution to an impasse

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Final-offer arbitration - both parties submit final offer to third party (arbitrator or panel) that has authority to select one of the proposals, but not to choose a compromise Mediation-arbitration - mediator is given additional authority to arbitrate any unresolved issues, which may make mediation more successful Fact finding - third party assembles the facts and makes them public May recommend how to end an impasse

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Nature of public employment

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Public employees provide essential services Lack of controls on public service and absence of marketplace control on their costs Difficult to assess productivity of a professional work force Elected officials represent public employers Sovereignty Doctrine limits issues addressed by bargaining

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Limited scope of negotiations in public sector

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Management rights are broader than in private sector Agency shop the most common type of union security Federal law precludes negotiation about wages and benefits Type of job determines flexibility of negotiations about hours Negotiations about working conditions focus on the provision of services to the public Grievance procedure must be included, often with provision for binding arbitration

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Negotiating the public employee contract

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Bargaining theories and processes in the private sector apply to public sector with little variation Multilateral bargaining exists in 2 forms Council form - government represented by a negotiator who returns agreement for council approval Executive-legislative form - negotiator employed by executive branch returns an agreement Agreement must be approved by both executive and legislative branches of government Open negotiations - press coverage may harm negotiating process Sunshine laws - may require bargaining to be open to public Press coverage necessary because of ultimate responsibility of the public for decisions of elected officials

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Bilateral Bargaining

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Management negotiators have the authority to commit to a negotiated agreement at the bargaining table unlike private sector.

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Right to strike public sector

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Usually denied to public employees by collective bargaining statute or by court actions Arguments that support the right to strike In actuality, public employees go on strike despite laws to the contrary Strikes, or credible strike threats, facilitate final agreement Strike strength can be used as union bargaining strategy Nonessential public employees should have same rights as private-sector employees **Arguments that oppose the right to strike Public employees provide essential services Gives employees more power than elected officials Unions can compel governments to make unwise agreements

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Resolving an Impasse in the public sector

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Public sector employer generally may implement its "last best offer" Mediation - provided in almost all states with public sector collective bargaining Mediator has no independent authority to resolve disputes Fact finding and advisory arbitration More effective because of political pressures Third party issues findings and recommendations Interest arbitration Arbitrator or panel makes a binding decision on negotiation disputes

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