Public Sector Union Negotiation Models, Strategies, and Tactics- Part II

transcript

Chapter 6Negotiation

Models, Strategies, and

Tactics

PART II Labor Relations Overview

Chapter Outline

• The bargaining process• Preparation stage• Bargaining stage• Pressure bargaining• Possible strikes• Reaching impasse• Resolution stage

Chapter Outline (cont.)

• Beyond impasse• Reducing an agreement to writing• Key provisions of a CBA• Bargaining in the Public sector

The Bargaining Process

• People who bargain• Union representatives• National agreements - large negotiating teams• Local agreements - comprised of ex-officio members, a

chief steward or grievance committee member• Final settlement usually must be approved by

membership

The Bargaining Process (cont.)

• Management representatives• Top management, including policy makers, labor

relations staff, and some line executives

• People who bargain (cont.)• Negotiating skills• Must understand their own positions as well as the other

party’s positions on each bargaining issue• Listening and communication skills• Personal integrity and courage• Figure 5-1: UAW-Ford National Negotiating Committee

Figure 6.1 - The Three Stages of the Bargaining Process

• Preparation and choice of bargaining items• Analysis - data is gathered and bargaining items are

identified• 3 categories of bargaining subjects - Borg-Warner

• Mandatory - A party may insist on its inclusion and the other party cannot refuse to discuss it

• Permissive - A party must withdraw itself from bargaining if the other party does not voluntarily agree to discuss it

• Illegal - Violates public policy or inconsistent with NLRA

• Preparation and choice of bargaining items• Analysis (cont.)• Mandatory items

• Legal impasse occurs when parties cannot agree• At impasse, employer can impose its final offer

• Analysis (cont.)• Permissive items• Concessions seldom made on permissive subjects• Cannot bargain to impasse• Examples of permissive items

• Performance or indemnity bonds• Management’s right to have an impact upon internal union

affairs

• Illegal items• Examples of illegal items

• Violations of public policy• Items inconsistent with the NLRA

• Separability clause

Table 6.1 - Bargaining items

• Preparation and choice of bargaining items (cont.)• Analysis (cont.)• Sources of bargaining items

• Unions introduce new items to be discussed• Union surveys membership to identify issues• Analysis of issues brought as grievances• Recent contracts negotiated in same industry

• Preparation and choice of bargaining items (cont.)• Planning - effective negotiators:• 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

• Negotiation sessions• Ground rules established by parties• Where, when, how often, and how long to meet• Size of bargaining teams• Each side designates a leader

• Exchange initial proposals• Separate economic and non-economic issues

• Negotiation sessions (cont.):• 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

• Negotiation sessions (cont.)• Tentative agreement• Must be ratified by union membership in secret-ballot

• Contract - written form of negotiated agreement• May encounter problems on agreeing to language that

reflects agreement

Impasse

• Many 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

Impasse (cont.)

• Calling a strike: “lies at the core” of NLRA• 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

Figure 6.2 - Number of Major Strikes (Involving 1,000 or More Workers)

Impasse (cont.)

• Management response• Prepare a strike plan that may entail:

• Shutting down operations during strike• Continuing to operate using management personnel• Hiring replacement workers

Impasse (cont.)

• Calling a strike (cont.)• Predicting a strike• Multiple causes of strikes make them difficult to predict

• State of the economy and political forces• Failure of the parties to correctly estimate other party’s level of

interest in critical factors• Cost of strike• Benefits stemming from a strike

Impasse (cont.)

• 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

• Calling a strike (cont.)• Types of strikes• Primary strikes - strike between an employer and

employees• Economic strike - called to affect the economic settlement of a

contract under negotiation

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

Impasse (cont.)

• Calling a strike (cont.)• Permanent striker replacement• Worker retains protection of the NLRA under both

economic and unfair labor practice strikes• 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

Impasse (cont.)

• 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

Impasse (cont.)

• Calling a strike (cont.)• Illegal strikes• Unlawful means of conducting a strike include:

• Sit-down strike - takeover of employer’s property• Wildcat strike - does not have approval of the union • Partial strike - various job actions that violate employer’s

property rights• Sickout - organized effort to have workers call in sick

Impasse (cont.)

• 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

Impasse (cont.)

• 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

Impasse (cont.)

• 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

• 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

Impasse (cont.)

• Resolution of 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 of impasse (cont.)• Final-offer arbitration• Mediation-arbitration• Fact finding

Impasse (cont.)

Bargaining in the Public Sector

• 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

Bargaining in the Public Sector (cont.)

• 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• Executive-legislative form

• Negotiating the public employee contract (cont.) • 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

• Right to strike• 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

• Right to strike (cont.)• 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 impasse in public sector• Public sector employer generally may implement its

“last best offer”• Mediation - provided in almost all states with public

sector collective bargaining• Fact finding and advisory arbitration• More effective because of political pressures

• Interest arbitration• Arbitrator or panel makes a binding decision on

negotiation disputes

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Public Sector Union Negotiation Models, Strategies, and Tactics- Part II

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