V435 Chapter 5

People Who Bargain
1. Union Representatives
2. Management Representatives
Union Representative
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
Management Representative
Top management, including policy makers, labor relations staff, and some line executives
Labor relations adviser and negotiator used for multi-employer bargaining
Negotiating Skills
Personal integrity
courage
set clear objectives
don’t hurry
be prepared
remain flexible
Listen actively
control emotions
Bargaining preparation
Analysis
Planning
Analysis
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
Planning
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
Mandatory Items
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
Permissive Items
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
Illegal Items
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.
Borg-Warner Case
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.
Featherbedding
the practice of a labor union requiring an employer to hire more workers than necessary for a particular task.
Separability clause
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.
Sources of bargaining issues
Surveys
solicitation at general union meetings
meetings with union stewards
questionnaires
Bargaining process
1. Preparation
2. Bargaining
3. Resolution
Bargaining Stage
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
Posturing
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
Exchange of proposals and counterproposals
Usually get quick agreement on less important non-economic items
Bargaining on economic items typically involves packaging
Point of crisis – agreement cannot be reached
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
Pressure Bargaining
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
How to deal with pressure tactics
1. Ignore them
2. Acknowledge and discuss
3. Respond in Kind
4. Befriend the other party
Impasse
A stalemate occurs in negotiations between union and management over the terms and conditions of employment. Impasses are often resolved through mediation or arbitration
Employer can unilaterally mandatory terms and conditions of employment actual deadlock in good-faith negotiations
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
Strike
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.
Tentative agreement
Must be ratified by union membership in secret-ballot vote
Contract – written form of negotiated agreement
May encounter problems on agreeing to language that reflects agreement
reasons for a stalemate
Interests of parties have not been reconciled
One party has no intention of settling
Union membership rejects proposed contract
Options when impasse occurs
Third-party intervention
Continue the old contract on day-to-day basis
Lockout staged by employer
Strike called by the union
What unions look at when calling a strike
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
Possible Management response to a strike
Prepare a strike plan that may entail:
Shutting down operations during strike
Continuing to operate using management personnel
Hiring replacement workers
Types of strikes
1. Primary
2. Economic
3. unfair labor practice
4. Rolling
Why strikes occur
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
Primary Strike
strike between an employer and employees
Economic Strike
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!!
Unfair labor practice strike
called to protest an employer’s violation of the NLRA
Economic strike may become an unfair labor practice strike
Rolling Strike
targets one location of an employer at a time for a union walkout
Location can change daily
Mackay Doctrine
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
Permanent Striker replacement
Worker retains protection of the NLRA under both economic and unfair labor practice strikes
Strike settlement agreement
If employer has hired permanent employees union might want to negotiate this, so they cannot be decertified.
Illegal Strikes
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
Sit-down strike
takeover of employer’s property
wildcat strike
does not have approval of the union
Violates a no-strike clause in existing contract
Partial strike
various job actions that violate employer’s property rights
ex. work slowdown, refusal to work overtime
Sickout
organized effort to have workers call in sick
Unlawful goals that make a strike illegal
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
Picketing
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
Prominent US strikes
In various industries – telephone, steel, airlines, coal mining, Major League Baseball
In various companies – Eastern Airlines, General Motors, United Parcel Service, Comair
Lockout
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
Telescabbing
using modern technology as a substitute during a union strike instead of hiring scabs.
No strike, no lockout provisions
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

Resolutions to an impasse
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
Resolution to an impasse
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
Nature of public employment
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
Limited scope of negotiations in public sector
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
Negotiating the public employee contract
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
Bilateral Bargaining
Management negotiators have the authority to commit to a negotiated agreement at the bargaining table unlike private sector.
Right to strike public sector
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
Resolving an Impasse in the public sector
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