While the bulk and most important work of negotiations – the organization, involvement and mobilization of the membership – takes place away from the negotiations table both before and during negotiations, the "glamour" job is that of the chief negotiator or spokesperson. While the unity and determinations of the union membership is far and away more important than the skill of the chief negotiator in shaping and determining the contents of the final package, the union’s chief negotiator is without question the most important single individual in the negotiation process.
It is critical for the success of the union that management understands that they are dealing with the knowledgeable representative of the entire membership with the authority to make meaningful commitments, promises and, sometimes, even threats on behalf of that membership. Unions insist, legally and rightly, that management send to the table a negotiator "cloaked with sufficient authority" to negotiate. The union’s representative must at least equally command management’s respect and maintain the absolute respect and fear of management.
There are at least five distinct choices for the position of chief negotiator. Some unions have the option to make that choice prior to negotiations, while in other unions, the choice is mandated by the union constitution or by-laws. Regardless of the method used, it is important for negotiating committees to understand the strengths and weaknesses of each choice. The five alternatives are:
The local union president who is an employee in the bargaining unit. In most cases the president will be the person who has the greatest support and trust among the membership. The president often is very knowledgeable of the strengths and weaknesses of the present contract and workplace issues. The downside of having the president as chief negotiator, while they may not be obvious, can outweigh the advantages. Communications to and from the membership is a job that the president may be the one person uniquely qualified to handle. The president may also be the person best suited to developing support among the negotiating team for the negotiated contract, but this is difficult if the president is also the negotiator. In addition, the other responsibilities of the president are often time consuming and make it difficult for the president to serve both in his or her elected office and serve as chief negotiator.
A Negotiations Chairperson or some other elected or appointed officer of the union. Like the president, this person may be assumed to have the support of the membership and this choice enhances local union democracy. Like the president, this person may often have little experience in negotiations and may be viewed as just a "worker" who "doesn’t know any more about negotiations than I do" it may be difficult for this person to place personal workplace problems and goals in proper perspective and act in the interests of the entire membership. Conversely, he may be so careful to avoid showing undue care for their own situation that they bend over backward to avoid any appearance of self-interest.
An International Representative or other union staffer. Even new reps are likely to have more experience and confidence in negotiations than a member of the bargaining unit. In addition, their vested interest is in the continuing success of the union as a whole, rather than in a particular unit or department. Staff reps do not set at the table negotiating against someone who is his or her "boss" and therefore are in a better position to maintain the equality of the union at the table. Their services are free to the local union. However, the staff rep may not be familiar with either the workplace problems or familiar to the membership. The press of other duties may be a distraction and may limit his or her time making it more difficult to give the attention and the patience needed to get the best settlement possible.
A Hired Gun, such as an outside lawyer or consultant. If the union does a good job in selection, then an outsider can bring much experience and skill to the table. The outsider will also be under more direct control of the local than an international representative. However, there may be a lack of familiarity with workplace problems (and language) and there certainly will be a cost to the local. A lawyer will also have a tendency to write contract language in legalese despite the fact that clear and simple English is just as legal and binding.
However chosen, the chief negotiator will learn the tricks of the trade primarily through observation of and interaction with other negotiators. Most negotiators in time tend to share certain common talents and skills. If there is a single most important trait in a negotiator it is a flexibility (which does not men a lack of conviction or weakness). Tactics effective in one situation may fail totally in another very similar situation and no negotiator should attempt to blindly follow any simple set of "rules" such as the ones included in this workbook. In addition, each negotiator will inevitably develop his or her own "style" and no one should attempt to adopt any suggestion or follow any rules with which they cannot feel comfortable.
Your team is to prioritize (with 1 being the best and 5 the worst) the five alternatives for selecting a union chief negotiator. You should be prepared to defend your reasons why you chose one alternative over another.
Below are some of the roles and qualities we have identified in a good union negotiator. Read through the list and then, as a group, prioritize the importance of the six listed areas for negotiators. You should be prepared to explain what struck you as important (or unimportant) about each of the listed areas.
Director of Table Tactics
However a chief negotiator is chosen (see "The Choice of Negotiator"), s/he will learn the tricks of the trade primarily through observations of and interaction with other negotiators. Most chief negotiators in time tend to share certain common talents and skills. If there is a single most important trait in a negotiator it is a flexibility (which does not men a lack of conviction or weakness). Tactics effective in one situation may fail totally in another very similar situation and no negotiator should attempt to blindly follow any simple set of "rules" such as the ones included in this workbook. In addition, each negotiator will inevitably develop his or her own "style" and no one should attempt to adopt any suggestion or follow any rules with which they cannot feel comfortable.
Perhaps the main job of the negotiator before beginning negotiations is to assess the unity, strength, expectations, and determination of the membership. Next in importance is the degree of support and trust that s/he can expect from other members of the negotiating team. It is the chief negotiator’s assessment of the understanding and loyalty of the negotiator’s team that will have a major impact on the negotiator’s style and tactics at the table. Except in the rarest of circumstances, the assessment will reveal problems and many will be the problems about which the negotiator can do nothing. But they must be taken into account.
Maintaining Equality with Management
An early and continuing task of the negotiator will be to assert and maintain the equality of the union side of the table. Toward this end, you should normally hold meetings on neutral turf rather than in the employer’s conference room (where management is clearly in charge of nearly everything, including the temperature and the copying machine). One problem that may prevent even the semblance of equality is the natural tendency of the management team, ordinarily the "bosses", to call the union members by their first names while the union negotiators, ordinarily the "employees ", just as naturally tend to call the management negotiators "Mister". A way to establish equity early on is to suggest: "We’re going to be spending a lot of time together the next few weeks and we should be as relaxed and comfortable as possible. It’s certainly a minor point but what form of address would your prefer? First names? Or would you prefer to be more formal?"
The chief negotiator should also politely but firmly insist that all questions be directed to him or her and no one on the union side should speak except by invitation of the chief negotiator. The importance of this rule, which is not merely a tactic but rather a fundamental of union strategy, cannot be overstated. Between the natural tendency of many union members to "speak their piece" and the temptations with which management will bait union committee members, this discipline is more than smart table manners. It is constant evidence that management is dealing with a union, not with a crowd or a mob of individuals.
One of the reasons that committee members break discipline and speak out of turn is that they get bored with the process of negotiations. The actual configuration of the bargaining table contributes to this boredom. When committees are too big, members on the ends of the table often feel left out. The typical seating arrangement at the table is for the two chief negotiators, flanked on either side by the committee members, to face each other from the opposite sides of a large rectangular table. This enables the two negotiators to negotiate in a manner that often results in the members at the end of the table having trouble following the discussion. Simply placing the two chief negotiators at opposite ends of the table with their members flanking them at the sides of the table will assure that they speak loudly enough for everyone at the table to hear. And, psychologically, the committee members will tend to feel included rather than excluded from the discussions.
Private Meetings
An important consideration for the chief negotiator is to maintain the trust and support of the negotiating committee. Clearly, this is most important in distinguishing between solo and secret negotiations. There are a number of situations where solo negotiations is required: when one local deals with a number of small employers, when a pattern has been set and the union official is getting other employers to "sign up", or during the course of negotiations it becomes important to meet in an informal setting to get a feel for where the bottom line may lie. However, it is crucial to draw the distinction between negotiating privately and negotiating secretly. Few things can destroy the cohesion of a negotiating committee (and the membership, by extension) than a negotiator who enters into secret negotiations.
While a secret negotiation implies "sell-out", private negotiations between the chief negotiators can and does work to achieve agreement. The reality is that in negotiations, once an offer is made at the table it effectively represents a new "bottom line" for the side that is floating the proposal. This is one of the big reasons that progress is often so frustratingly slow at the table. Both sides are reluctant to explore possible compromises since by making the offer, they have effectively changed their official position. Private meetings provide the venue by which the parties can search for and discover mutually acceptable compromises.
Such private meetings, if conducted in secret, are certain to arouse suspicions and distrust. But there is seldom any need for them to be kept secret. If the union negotiator levels with the committee members and asks if a meeting should be sought or agreed to they will most often agree, especially if the suggestion comes at a difficult point in the negotiations.
Initial Sparring
Management often begins negotiations by making an opening statement outlining the bleak financial condition of the company and warning that any increases in costs may send the company down the tubes. It is probably just as well to sympathize with and profess understanding of management’s plight and suggests that under the circumstances it is even more urgent that the parties move quickly to reach and agreement on a fair and equitable contract since the tensions and uncertainties of a long and drawn out negotiations are destructive of morale and disruptive to productivity.
The union may even use its own opening statement to suggest that because of the urgency of the situation the union has trimmed its demand to the bare minimum so as to not waste everyone’s time in haggling and horse trading. The union can request that management make some suggestion about wage and benefit increases, but unless management is after some concession, they generally refuse to make any offer. However, there is no harm in asking and there are the rare occasions when management is willing to grant more in isolated areas than the union had contemplated asking. This puts the union in the position of agreeing to a management demand and, if you are creative, using that agreement to lever a little bit more out of management as the price they pay for your agreeing.
The Art of Timing
In negotiations, patience is a virtue. The chief negotiator should strive to be perceived by the opposite side of the table as a reasonable and patient person who understands their problems and whose chief interest is in reaching a fair and equitable settlement. Pressure and threats should come from a determined membership, not from the chief negotiator. And if threats do become necessary they should be delivered in sadness rather than anger.
Negotiations is at least as much an art as it is a science. While there are facts to learn and skills to practice, there is a portion of the negotiation trade that seems to come naturally to some and to escape others indefinitely. This refers, of course, to the art of timing.
Everyone knows when they see it and nowhere is there a better example as in watching a great comic. The same words, sometimes even the same gestures, delivered by a competent comedian who evokes a belly laugh from the audience when delivered by someone less sensitive to the nuance of timing may be responded to by a groan or a snicker. This aspect of the art of timing is so personal a talent that its characteristics and processes are difficult to describe and define.
But there is another element of timing that can be developed as a conscious part of strategy. First it needs to be noted that no major concession would ever be made without some terminal point to the negotiations. Frequently this is the contract termination or strike deadline, which is why so many negotiations are settled so short a time before the "final hour". That "hour" may be a given but the negotiator can and must create other deadlines to keep things moving. The calling of a meeting to which one must report is a self imposed and somewhat arbitrary deadline. There are others.
Job actions are a critical part of the negotiations that it is worth noting that the timing of such action is a basic part of negotiation strategy. For this reason even though someone in the union must be designated as the strike captain, the timing of calling (and calling off) of membership mobilization activities must be ultimately the responsibility of the chief negotiator.
In order to slow down negotiations (management seemed too eager to get to impasse and impose certain contract cuts) one negotiator had his doctor check him into the hospital for extensive test to his heart and nerves. It was impossible for management’s public image that it insist on the union continuing to meet until its chief negotiator’s fate was known. Conversely, another local scheduled a date on which its national president would join the bargaining - a president whose reputation for abusive tactics was so well known that management had an incentive to settle with the more moderate local leaders. The negotiator must search the calendar of public events that may be used as bargaining levers. Is there a stockholder meeting? Is the legislative session about to begin or end? Has their negotiator scheduled a delayed vacation trip for a time when the negotiations were presumed to have been completed?
There is another aspect to timing that merits attention. That is the use and abuse of all night, round the clock marathon sessions. These sessions catch the public’s attention with the media coverage of the "36 hour, non-stop bargaining", which led to the agreement. Some very sophisticated union negotiators enjoy telling war stories about how they put something over on management in the middle of the night. But the magic of the marathon session is mostly myth and there are dangers. Frequently, members of the committee are required to keep up with their regular work. In addition, they seldom are used to the pressures of the bargaining table and are subject to great stress. The potential advantages to the union must be weighted against the cost of wearing out the union committee.
Caucus
Caucuses are usually abused. Flurries of note passing and caucuses by the union signal management that no one is really in charge and that they are dealing with a collection if individuals rather than a team. Note passing is best kept to a minimum and each member of the union team should have a reliably secret signal to alert the chief negotiator that a caucus is needed. Every union caucus can then appear to be called by the chief negotiator and the impression given that there is no dissension or faulty communications among the members of the union team. The excessive use of the caucus by the union is often a symptom of lack of trust, poor communications, or other weaknesses of the union team.
Every request for a caucus as well as the length of the caucus will send a message to management and thought and care should be taken to make certain that the message received is the one you intended to send. If management, for instance, should make the unexpected and rather attractive offer to agree to an 8% across the board increase in exchange for a group of union proposals - for varying cents per hour increases, an additional holiday and longevity pay - might well require a caucus but the way it is requested might be critical.
If the union’s chief negotiator simply said, "give us a few minutes," management would likely and logically conclude that the union found the proposal attractive and that the union was not irrevocably wedded to the notions of wage adjustments and longevity pay. A different and usually preferable message would be sent if the response of the union negotiator was: " No, that’s not acceptable but it does represent some movement. Give us a few minutes and let me see if we can come up with a counterproposal that might meet both our needs."
A common mistake union teams make is the failure to take advantage of management caucus. If management is putting together a new proposal, the union should be busy anticipating the proposal and deciding in advance the proper responses to the various proposals considered the most likely.
There may be times when a caucus is wanted for no other reason that R & R and it can be advantageous to play cards (or take a nap) while management tries vainly to figure out what in the world you are considering. As with other disingenuous tricks, it can be a two-edged sword and this is not to recommend such a tactic, but rather to illustrate the variety of uses to which a caucus may be put.
It is during the final hours of settlement that the chief negotiator needs all of the imagination, calculation and team support possible. To wrap up the deal he or she may need to move quickly usually without a caucus - to "adjust the package". Management’s, of course, concerned with all the economic elements of the contract but frequently they are more concerned with the total cost over the life of contract of all wage and benefit increases. By delaying increases to later in the contract it is naturally possible to reduce the total cost of the package but at the same time establish wage levels or new benefits that will, hopefully, continue indefinitely in future contract. Increases to be effective in the final months of the contract may cost the employer little but may represent an important "foot in the door" for the union.
The Other Guy’s (Or Gal’s) Tactics
The range of management negotiators runs from paternalistic owners of profitable businesses to ideologues that would never agree to "compulsory" unionism. The most likely adversary, however, will be the professional negotiators who are usually difficult but seldom impossible. Their assignment is to reach an agreement and they will try to do it. They usually come into negotiations with instructions to make a settlement within predetermined parameters. Unfortunately those parameters are established within the comfortable confines of the president’s office or the boardroom rather than under the pressures of the negotiations table. One can only hope that the company negotiator will be a person with some confidence and flexibility or with sufficient stature or persuasive ability to have the parameters modified. Otherwise a strike may be preordained and inevitable. The realistic potential of a strike is such a professional representative’s major lever in inducing a change in top management’s "parameters" - that is their realistic consideration of how far they will really go to avoid or settle a strike.
Part of the planning for negotiations is imagining what we would do if we were them. For example, how do you handle this classic management stratagem:
Many management professional negotiators like to play the "good guy" role. Such a negotiator emphasizes his or her commitment to the integrity of the collective bargaining process, sympathizes with the plight of the workers, has empathy for the enormous task confronting the union negotiating team respects the union’s chief negotiator, etc. This "good guy" will frequently report the hostile attitude of the "big bosses", their eager anticipation of a confrontation with the union, the tight rein under which s/he is held. Such a negotiator seldom says "no". Rather, "It’s not in the cards," "I’d get my head handed to me if I even suggested something as extreme as what you’re proposing," etc. At critical moments, usually near the end of negotiations, the "good guy" offers to become the union negotiator’s agent. S/he volunteers to "try to get a little movement on this one" and, if "successful," reports back that s/he stuck his/her neck out for you. The result is obvious - you now owe him or her a favor- and certainly don’t want to jeopardize his/her job because then the "bad guys" would come to the force.
While this tactic may not move the experienced union negotiator it is often amazingly effective with the union bargaining team. The way to protect the union from such blatant manipulation of the naivete of members of your team is to overcome the naivete with information. If you have explained this you will have inoculate your team against the temptation to be taken in by Mr. Nice Guy.
It is well to remember that "bargaining" is simply a euphemism for the earthier and better understood "haggling and horse trading" from our history. The concept of "fixed prices" had its origin with the Quaker shopkeepers of Philadelphia. These were persons of such stringent integrity that they held it a "lie" to ask more for a product that they were willing to accept and felt morally compelled to break with the ancient and almost universal practice of asking more-than they expected to get and then haggling about the final price. Shoppers found the concept of fixed prices such a relief and convenience that they flocked to the Quaker shopkeepers who found their morality unexpectedly financially rewarding and went on to establish the predecessors of the great department stores of today.
Perhaps some equally moral union negotiator may someday find some bold and innovative way to apply the same concept to the process of collective bargaining, but we haven’t seen that day arrive yet. In the meantime it may be that there are some union members and officers of such unbending honesty that they are simply not fitted for the real world posturing and game playing of the negotiations table. They must leave the field for others.
The negotiating table is much like a poker table only infinitely more complicated. As at the poker table, there is concealment and posturing but despite the posturing the effective negotiator will normally develop a surprising degree of trust with his or her counterpart on the other side of the table. The negotiator’s word when given should be honored and there is seldom anything to be gained through dishonesty. Like in poker, the negotiator may bluff or dissimulate in the play of the cards. However, there are rules of play and some IOU’s that the professional poker player must scrupulously honor or be banned from the game. There are also some rules that must be honored to be continually effective.
Professional negotiators on opposing sides of the table frequently develop a surprising level of trust with the word of one to the other that is regarded as binding as a signed agreement. With that said, it is difficult to precisely define the boundary that separates permissible posturing from unacceptable dishonesty. Perhaps some examples will best illuminate that boundary. You decide if they are posturing or lying.
"Listen to me, please. I don’t like to make threats and I’m certainly not threatening now. But believe me when I tell you that this contract will never be settled as long as you insist on compulsory overtime. Until you move off of that position we’re wasting each other’s time no matter what else we agree on. You’ve got my word on that"
"Look! For a dozen reasons - internal union reasons that are neither important nor interesting to you - we simply cannot agree to compulsory overtime. Go along with our language on voluntary overtime and I’ll guarantee you that you will have no problem in getting people to work overtime. You have my word on it!"
The union negotiator surveys the wage rates being paid by a dozen comparable employers but presents at the table only the three highest rates. Permissible? How about if the negotiator alters some of the figures?
Tentative agreements: During the course of negotiations there is language initialed that does not accurately reflect agreements reached. Since the inaccuracy seems to be to the union’s benefit, you choose to "hold them to it". What if this language was not "tentative" but rather was final and the mistake was not discovered until after the contract was signed?
Management is not likely to take your original proposals very seriously. They will assume that you do not expect to get everything or as much as you ask and their first task will be to attempt to read (through words, body language, past history, shop gossip) what your real position is. Hours will be spent in management caucus in an effort to determine with reasonable precision what you really expect to get and more importantly, what you will settle for. Serious and productive bargaining is not likely to begin until management thinks that it has accurate answers to those questions.
Therefore, demands are meaningless unless they are credible. This doesn’t mean that your initial demands should be your bottom line. Rather it means that ridiculously inflated demands serve no useful purpose and that early on you should be attempting to signal to management the seriousness of your position. In reality, neither side knows its real bottom line until negotiations are well advanced and the reality therapy of an impasse leads to reassessment by each side of their own and their adversary’s tolerance limit.
Every union demand should be supported by logical, rational argument but bear in mind that negotiation is not debate and winning debating points counts for nothing, indeed may be counterproductive. The goal is to persuade management to agree to your position and arguments should be used that are meaningful to management. An effort should be made to convince management that a specific union demand would actually reduce costs or at worst, minimally increase them. A wage increase will improve morale and increase efficiency. An improved pension plan will increase the job attachment of highly trained and skilled employees thus reducing the costs of turnover. A better medical plan will attract already trained and skilled new employees. Longer vacations and additional holidays will reduce absenteeism and concomitant adverse impacts on production.
In presenting the union’s demands, it is not always necessary or desirable to "table" a full set of specific demands. Instead, you can go to the table with nothing in writing but a set of "problems" which you ask management to discuss with you. When you do make your demand’s, management will normally seek assurances that the proposals represent the entire package and they seek a commitment that no additional demand will be made. The proper response is: " Sure. That’s everything. Sign it all we’ll all go celebrate with a bottle of champagne. Of course, if you are unable to agree fully with any of our proposals we naturally reserve the right to search for agreement in every way possible - including the offering of substitute proposals."
There is a natural (though unspoken and informal) quid pro quo principle in constant operation at the negotiation table. "I’ll give you this if you give me that," or "I gave you that so you owe me this." Because of this fact it may be something of an advantage to portray every agreement as a concession to management. Rather than offer a union counter-proposal to an unacceptable management proposal. It is sometimes better to say that you will accept, reluctantly of course, management’s proposal with some minor modifications. Like most other tactics this one can be abused to the point of ineffectiveness. "We’ll accept the management proposal on wages if the 5% increase is changed to a 15% increase", is obviously so totally transparent as to be worthless.
It is frequently wise to attempt to tie several items together and attempt to dispose of all of them together. The union will accept management’s position on overtime if management will meet the union halfway on speeding up the grievance process. The union will accept the company’s offer on pension contributions if management will agree to an additional holiday, etc. Such "packaging" may not always be logical but is often useful.
The same gambit can be used, to a lesser degree, to reopen proposals already tentatively agreed to. Should you wish to reopen such a tentative agreement, it is sometimes possible to do so by suggesting that the union could agree to the management position on a subsequent proposal by linking it to a modification of an already tentatively agreed to item. Remember that such a tactic borders on bad faith (in a real rather than a legal sense) and it should not be used lightly and always with a clear emphasis that it is in no sense a demand but rather a suggestion offered in the hope of speeding up bargaining.
Before accepting or rejecting any management proposal, except "in principle," the union should make certain that it understands the proposal and it is seldom wise to explain management’s proposal to them before they have explained it to you. Before accepting a proposal sorrowfully explain that you have no recourse but to reject the proposal but that before you do you want to make absolutely certain that you understand it. Ask direct but neutral questions. Management will then tend to explain the proposal in the most attractive terms and they can do so at no risk since you’ve already announced that it is being rejected. If, on the other hand, an explanation is asked after suggesting acceptance, management will instinctively fear that they "offered too much" and will try to minimize the proposal in explanation.
Avoid too hasty agreement. Once it is clear that agreement is close it is often possible to "squeeze" just a trifle more. For example, " Okay. Let’s try to get on with it. We’ll but the 8% if you’ll agree to round all wage rates to the next highest nickel". On the other side of the coin, excessive reluctance to agree is the certain mark of the insecure and inexperienced negotiator. There comes a time when additional delay serves no purpose. Sometimes a skilled negotiator can challenge and jolt a management negotiator into movement with sudden, dramatic concessions: "It may cost me my head but if we’re ever going to get this contract finished somebody has to start some movement. You want your language on overtime? You got it. Now look at our language on arbitration. Look at the proposal on union security. Give us a little movement on your part and we’ll have done a good morning’s work."
If the negotiator is to be able to effectively employ such a tactic it is best done as if by sudden inspiration and desperation and not immediately after a union caucus. It is therefore important that the chief negotiator of into each session armed with sufficient latitude to effect compromise and movement - which means careful briefing and discussion among the members of the union committee in advance.
The best that might be done in some cases with particularly thorny problems is to establish some sort of continuing forum for their discussion and possible resolution. A common device is a labor management committee that meets after negotiations conclude to work on solutions to the problem. While these committees have no power to impose a solution. They have the potential to continue discussion on topics of concern to the union.
Where major issues remain unsettled and unsettleable at the deadline they may be dealt with through a "reopener". A common reopener is for the purpose of determining the wage increase in the second or third year. Such a provision has the advantage of postponing the problem and in some cases (particularly where inflation is feared and it is not possible to get cost of living language) may actually be preferable to a settlement. Better, however, not to make it a "wage reopener", where the employer may demand a decrease, but rather a "reopener for a wage increase".
In addition some thought must be given to providing for impasse resolution in such reopener where you have a no-strike clause. While it is logical and arguable that wages are so central to the collective bargaining agreement that in cases where they are not settled there is no collective bargaining agreement and thus no strike clause, given the difficulty of mounting and winning a one-issue strike- provide for binding interest arbitration.
In most cases, the local membership will have been solicited for contract proposals and they can be both voluminous and bizarre. In an effort to make the original proposals credible many negotiators will weed out the most hopeless demands. An alternative to this weeding is to take all of the demands to the table and then at the first go round agree, even suggest, that the fringe proposals be "tabled." Once the substantive contract issues have been resolved the union negotiator can suggest: "Look, I’ve got a problem. I’ve bent to the breaking point in order to compromise and reach agreement and we’ve still got this pile of tabled demands. It’s late and we’re all tired. I promised you that these demands will not hold up agreement and they won’t. But it will help us get the contract ratified and maybe keep me and other committee members from being lynched if you go through them tonight and see what you can do. It’s a difficult position to argue with and sometimes a few crumbs will be picked up. In addition, some additional members will see their concerns attended to in the bargaining process.
Stating the Union’s Demands
Discussion Questions
There has been an extraordinary amount of nonsense written lately about the techniques and tricks of negotiation but there is no magical way to persuade management to say "yes". Management will generally act in what it perceives to be its own self-interest. The truth is that the prostitute on the street comer knows approximately fifty percent of everything there is to know about negotiations: "Give me your money and it’s going to feel good". And the mugger on the comer knows the other half of the secret of successful negotiations: "Give me your money or you’ll be hurt".
The job of the union negotiator is to translate these crudities into acceptable bargaining table language: "A fair contract will mean reduced turnover, the attraction and retention of more competent and qualified workers, higher morale and increased productivity and, therefore, lower costs for management." Conversely, failure to agree on a fair contract will mean, if not a strike, at the minimum the reverse of all these things and, thus, higher costs for management.
The successful negotiation of the labor contract, from the union’ s point of view, depends far more on the unity and determination of the bargaining unit than on the skill of the negotiator. The most competent and accomplished negotiator in the land is not going "to wheedle" much of a contract out of management, not matter how glib his/her tongue, impeccable his/her logic, or persuasive his/her arguments, if: the local union is tom by dissention- the skilled craftspeople are concerned only with out-of-class work; the older members worry only about retirement and the younger members concerned only with a wage increase; and the lot of them are suspicious of the union and make it plain that "no union boss is going to tell me to strike." If the reverse is true (i.e., the local is truly united and there is effective concern for the welfare of one’s union brothers and sisters), then even a relatively inexperienced negotiator is apt to look like a hero.
Therefore, it becomes immediately apparent that when the local union prepares to go to the bargaining table what it needs is not bargaining tricks and tactics but a unified membership with well understood and common goals and a tightly knit bargaining team that understands and is committed to those goals. The union team must face and deal with problems that do not exist for its employer counterpart. Even the most autocratic of unions is, after all, a political organization and the final decision of the union team - to agree on a given contract - is usually subject to the vote and ratification of the entire membership. Even apart from ratification, the union team must be democratic in the ultimate sense that it speaks for the membership. As will be demonstrated, only its real representational nature gives the union team any real power.
Let us therefore start with several axioms; propositions so self-evidently true that they require neither proof nor discussion. We think that these three axioms contain the essence of what must be known and understood for the practice of effective trade unionism including the successful negotiation of a contract.
The goal of the union team is to negotiate the best possible wages, hours, and working conditions and to assure the continuing unity and health of the union.
The effectiveness of the union team in achieving its goals will be largely determined by the degree to which its positions at the table are supported by a determined, militant and unified membership. Stated another way, management is far more apt to accede to a union demand if it knows that the union team’s position is supported by a large majority of members who might well be willing to strike if that particular demand does not prevail. Stated yet another way, and more generally, management should have no doubt that the union team is the representative (in fact as well as in theory) of its workers and that if it reaches agreement with the team, it will have peace and productivity ... and if it doesn’t, it will have war. Not necessarily or only a strike; perhaps just discontent, turnover and lower productivity - loose bolts as it is occasionally called.
Every local union will have - either proscribed by constitution, by-laws or established in practice - a process for the selection of a negotiation committee. Members of the committee might be: elected by department or at large; appointed by the president; or members by virtue of their union office. Some locals, because of by-laws or past practices, will be locked into a system for the selection of team members. Frequently the team, usually called the negotiating committee, will be composed of certain elected officers plus some additional members who may be elected from the local at large or by departments or shifts. The job of the team is to:
Spend some time, the equivalent of two full days at the minimum, learning to function cooperatively as a team.
Draft specific contract demands reflecting the needs of the local as revealed through the judgment of the leadership, the survey of the membership, the grievance file, the advice of the international or regional union office, and recent contract settlements in the area and in the industry.
Utilize all available resources to learn as much as possible about the financial condition and plans of the employer.
Assign specific jobs to all members of the team. Chief negotiator, team captain, secretary, and bargaining book custodian are some obvious jobs and, in addition, subcommittees may be created to research and develop expertise in specific areas such as the incentive system, health care, safety, and pensions. The secretary keeps for the union’s exclusive use a summary of dialogue at the table while the bargaining book custodian keeps and organizes in a large loose-leaf binder copies of all of the proposals and documents that pass across the table. Each document should be carefully identified and dated. One section of the book should contain copies of the secretary’s notes.
Meet with the company team and negotiate the best possible contract.
Regardless of the system for the selection of the negotiating committee that exists within a given local, we suggest that what is needed is a "negotiating team" and a "negotiating committee". The terminology is not important but the functions are. The job of what we will call the "team" is to meet management at the table and engage in the actual negotiations. It should have a "spokesperson" or "chief negotiator" and might in addition also have a "chairperson" or "captain". Other roles played by one or more of the team include "note taker", "research", "communicator", etc. The spokesperson/chief negotiator speaks for the team at the table or, on occasion, directs other team members to speak on specific topics. The captain/chairperson handles the administration of the team’s business and speaks for the team - or perhaps directs the spokesperson or other team members to speak - when it meets with the membership. The spokesperson should be chosen on the basis of skill and experience in negotiations. S/he may not be a paid professional and is not always a member of the bargaining unit. There are advantages and disadvantages to the use of a professional in this role and we will discuss these arguments elsewhere. The team captain should be a political selection. Ideally s/he should be the person who commands great confidence and respect within the membership and among the team.
Every member of the team should understand that, even though s/he may even have been elected by a particular department or job classification, as a bargaining team member s/he represents no particular department or group of members but rather represents the entire membership. This is crucially important, and the entire membership must understand it. The bargaining team should be constituted so that every member of the local can look at the team and feel secure that at least one person on that team understands the particular problems or goals of the member’s department, job classification, or faction. This condition must be satisfied without making the team so large as to be unwieldy. It should emphatically be a team and not a committee. Bear in mind the classical definition of a camel: "A horse designed by a committee".
While the goal of the team will be to act always by consensus (indeed that should even be the goal, rarely attainable, of the local union itself; votes are by their nature divisive), reality must be faced and it is therefore a common rule to have the team composed of an odd number of members. Depending on the diversity of the local, three members might well suffice for most small locals. Five is usually a satisfactory number for locals smaller than 1,000 members and seven or nine is, in practice, about as large as a team can get and truly be a team. To some extent the question of size is secondary to the question of whether they can behave with unity.
Election, lamentably, is perhaps the worst way to select a team. In the first place, the wrong people are likely to be elected. In a local with twenty- percent female membership, for instance, it is entirely possible that the election process would produce a team composed exclusively of men. In the second place, the team needs to be composed of members who understand and are committed to the proposition that the team and every member on it represents and acts for the entire membership and should not be an advocate for some special interest, whether it be some particular job (usually his/her own), age group, department, or shift. Where the team member has been elected, s/he may very naturally insist that s/he has a special responsibility to those members who elected him/her.
Perhaps the most practical way for dealing with the problem is to create (through electing and/or appointment) a very large negotiations committee. Then, to divide that committee into a small team to do the bargaining at the table and a larger "negotiations committee" charged with the responsibilities of surveying, educating, and informing the membership.
The "negotiations committees" as we define it, is essentially a communications link between the negotiation team and the membership and it is essential that communications flow in both directions. The function of the committee is to determine the priority demands of the membership and to relay that information to the team and to keep the membership informed on progress and problems at the table. Whereas the size of the negotiating team must be kept small, there are no such constraints on the size of the committee. It may be as large as necessary so that members of the committee can, particularly in emergencies, quickly communicate on a one-to-one basis with every member of the local.
Experience has shown that if the members of a local union truly understand that the effectiveness of their bargaining team depends on their own unity and support for the team’s position, they will almost always respond by behaving in their own self-interest. And if they understand the bargaining process itself, they will understand that they must set their contract negotiations goals high (but not unrealistically or absurdly high) but in the end, probably have to accept something less.
Hence, it is the first task of the negotiating committee members to understand the simple principles embodied in the axioms on page one. Their next job should be to impart that same information and understanding to every member of the local union. Union-busting management consultants have found that the most effective way to do their job is to have it done by first level supervisors on a one-to-one basis. Oral communications on a one-to-one basis, they have found, is far more effective than newspapers, letters, or meetings.
The job of communicating with every member of a local on a one-to-one basis may, at first, seem an impossible task but it’s really easy enough if it is divided among enough people. A telephone or communications tree is an ideal way to make the division because the tree can be used for almost instantaneous, inexpensive, and reasonable confidential communication with every member throughout negotiations and, particularly, during a strike (should there be one).
Perhaps the simplest way to form the tree is to divide the entire membership among the members of the negotiations committee so that all members are responsible for approximately equal numbers of members. Each committee member should then recruit one subcommittee member for each ten to fifteen members in his/her bloc. Once the tree is in place, it should be tested and regularly used to be certain that it is kept working properly. Most members will be eager to cooperate since it is obvious that truly vital information could come to them at any time through the tree.
To be effective as a negotiating committee and to meet the goals of the union, the committee should:
Select a committee chairperson who convenes and presides at meetings of the committee. In addition, there should be some single person, not necessarily the chairperson, to serve as liaison with the team.
Meet together as a group and spend some time, perhaps not as much as the negotiating team, learning and practicing communication skills. The exercises contained in this workbook for use by the team will also be appropriate and useful for the committee.
Spend at least eight hours, in a single session if possible but two or three if necessary, familiarizing every member of the committee with the material on negotiations and on the Negotiations training material. As many-committee members as possible should be given the opportunity to serve as workshop leader in dry run practice sessions with the committee. A subcommittee should be appointed to revise and adapt, in consultation with local officers and the negotiating team, all of the material in the Negotiations Workshop.
Committee members should schedule as many ninety-minute negotiation workshops as needed and, if possible, to accommodate all members who are willing to attend. It is reasonable to expect as many as fifty percent of the membership to attend a workshop if it is properly advertised and promoted and if it is conducted at a convenient time and place. In most cases, immediately after work is the ideal time and a comfortable place near the work site is an ideal place. Attendance at any single workshop should be limited to about twenty. The workshop is designed to be conducted by a single committee member but it can also be conducted by a team of two-to-four members with the advantage that the members lend each other support.
One of the early tasks of the negotiating committee will be to survey the entire membership to find out which contract issues are most important to most members. Participation in the survey will raise the consciousness of the membership and involve them actively in the bargaining process. A request that they prioritize their contract demands will subtly prepare them for the certainty that the bargaining team is not going to be able to get everything on everybody’s list. Contract survey forms should be distributed by committee members and stewards, personally if possible, to all members of the local union and a record kept of the members who return the survey form.
A communications tree should be established for the local so that a message can be transmitted to every member of the local by each committee member calling four-to-seven members who in turn pass the message on to four-to-seven other members. Additional levels can be established if needed in very large locals. The beginning of the formation of the tree commences as one of the activities of the negotiation workshop. Since all members will not attend a workshop, some additional work will have to be done to make certain that every member of the local is plugged in at some point. Care should be taken to make certain that conscientious and reliable members form the "trunk" with weak or unreliable members located at the tips of branches so that they do not have the responsibility of passing messages on.
One of the first uses of the completed tree should be to survey the entire membership to find out which members have not returned their contract survey forms and to urge them to do so. Where members have lost the forms, they should be supplied another form and a commitment obtained for the return of the form at a specified time. Both the existence of the communications tree and the emphasis of the importance of every member completing the survey form will give the membership a valuable sense of involvement and will let them know that their opinion counts.
Throughout negotiation, the telephone tree should be used as a communications safety net to make certain that every member is kept informed about the progress of negotiations and is aware of meeting times and places, as well as such activities as "Button Day" or "T-shirt Day" designed to demonstrate the unity and strength of the local. However, committee members should not rely exclusively on the tree ‘but should make an effort to speak personally with each member in his/her group as often as possible. During these personal contacts the operations of the tree should be checked and malfunctions corrected. In a local of six hundred members, for instance, there might be a negotiations committee of twenty with each committee member passing messages to five people who in turn pass it on to five people. This would mean that each Committee member’s "branch" would number thirty people, besides him/herself, and s/he should cultivate personal communications with all thirty and particularly with the five people to whom s/he passes messages. In addition, s/he should encourage those five to stay in personal contact with the five people to whom they pass messages. Friendly rivalries - for highest participation in attending meetings, returning survey forms, wearing buttons, etc. - between the twenty branches can be helpful.
To review, the initial function of the negotiations committee is to explain to the entire membership the negotiation process and the procedure through which the contract goals are to be transmitted to the team. Its next task is to collect and prioritize - through a survey of the entire membership - the contract goals of the membership. Then, throughout the course of negotiations up to and including the ratification process, it serves as the communication link between team and members. The team needs to be kept continually posted on the mood of the membership and developments at the workplace; in turn the membership, if it is to be kept active and involved, must be kept informed on the progress, or lack of progress, at the table.
During the actual negotiations, the primary functions of the negotiations committee are to: keep the team constantly informed of morale and developments in the workplace (Are supervisors spreading rumors? What are they?); constantly remind the membership to give management evidence of their support for their team (through the wearing of buttons, attendance at meetings, recruitment of new members, writing letters, etc.); and keeping the membership informed on progress at the table. The committee, of course, will be limited in the news that it can give the membership to what it is given by the team.
In addition to passing on available information, it must repeatedly explain to the membership that there are no secrets among several hundred people and that it is crucial that the team not release too much information so as to tip off management as to its tactics or strategy.
Once the composition of the team and the committee has been determined, the very first job is for each to undergo the needed training and practice in teamwork and communications. An outside facilitator to guide and assist the groups at this point is highly recommended and is almost certainly available at minimal cost from a nearby college or university. The Facilitator should be someone not only skilled in communications but also someone knowledgeable about and sympathetic to unions. Probably the best course of action is to turn for advice to a staff member at a nearby Labor Education Center. Names and telephone numbers are included in the appendix and unionists should feel free to call upon them. That’s their job.
If, for whatever reason, it is not possible or deemed inadvisable to obtain the help of a facilitator, the members of the team should pick one of their own members to act as facilitator. The facilitator should follow, exactly, the instructions for the exercises described in the remainder of this chapter.
By the time the communications and teamwork training is completed, all members of the team should be able to agree on the following ground rules:
It is the responsibility of the team and of each member to represent the membership, to accomplish the greatest good for the greatest number.
The team will attempt to reach all decisions by consensus and will be careful to give every member the opportunity to be heard but, when consensus is impossible, decisions will be made by majority vote and each member will support the decision of the majority as if it were a consensus.
All discussions within the team and at the negotiations table will be held confidential and released only be decision of the team through a designated spokesperson.
All members will publicly support the recommendation of the team to the membership and will refrain from criticizing specific elements of the agreement.
Following the team training in communications and teamwork, these ground rules should be reviewed and fully discussed. The team should not attempt to move ahead in its work until real consensus on them is obtained. In cases where consensus is not possible, it will probably be wise to consider changes in the composition of the team.
When the team first assembles, the need for training will quickly become glaringly obvious, particularly to the extent that many of its members are likely to be without prior bargaining experience. Frequently, the members who served on the last negotiations team will be conspicuous by their absence because they will have found that the pressure of the negotiations was far worse than they had ever imagined and that they did not end up the kind of heroes they may have fantasized. The contract they negotiated was not everything that anyone had wanted and most members quickly accept and forget the good points and blame them personally for the bad points. Worse yet, the members tended to assume that the negotiations had been an exciting lark away from work with most of the time spent washing down rich food with good liquor - all paid for with members’ dues money. Certainly no one ever said ‘thank you". Almost always there will have been someone, frequently at the public ratification meeting, who accused them of having been in bed with management. It’s not surprising that few come back for a second dose. This illustrates once again the essential differences in bargaining between management and unions. Management can order people to serve as hired Hessians. The union’s army is composed, for the most part, of volunteers.
At or before its first training session, which should be no shorter than two hours, a temporary chairperson should have been designated by the president of the local or chosen by the members of the team. Should it become apparent that a divisive struggle for the chairpersonship is developing it might be wise to agree that the temporary chairperson is ineligible to become the permanent chairperson. This is one of the many devices for avoiding divisions that the team (and the committee) needs to practice and learn. The temporary chairperson should be a member who likes to read (there will be much reading to be done in preparation for subsequent training sessions) and who enjoys the trust of all the members of the team.
After making certain that all of the team members know each other, the chairperson should open the first training session with the following statement:
"I am as uncertain about the task we are beginning - preparing to work together as the negotiating team - as anyone else. We are beginning a training process that has worked for other locals...has helped other negotiating teams do a better job for their members ... and I think we owe it to our members to give it a chance to work for us. If it works, we will all benefit. If it doesn’t, we will have lost nothing but a little time."
"Personally, I’m more interested in what kind of pay increase we’re going to get than in playing what may look like a lot of silly games. I’m as eager as anyone else to start talking about the kind of demands we’re going to make when we sit down with management. But I hope that we can all agree to stick to our agenda, postpone many of the other things we’d like to talk about, and give this process a fair chance to work."
"The training exercises that we are beginning are designed to help us come together as a team. We’ve all watched enough Sunday afternoon football to know what a team is, to understand that if we are truly going to function as a team then we have to know each other, have to trust each other and have to be able to talk to each other freely and easily. Management, of course, is going to try to divide us, to play one job classification off against another, one department against another, one of us personally against the other. If we’re really a team, they won’t be able to do that. It makes sense."
"Don’t misunderstand. I’m not saving that we all have to like each other. That might be nice and it might happen but it’s not necessary. For the time being, and only temporarily, I’m asking only that we all agree to abide by the following ground rules":
Assume that everyone on this team is sincerely interested in negotiating the best possible contract for the entire membership.
Keep all of our discussions confidential within the team.
Forget all of the ancient history and concentrate only on the job and business of this team.
Try to talk as honestly and openly as we can.
Refrain from judging or accusing other members. Talk about our own feelings, fears and hopes. There’s a world of difference in ‘You’re trying to put me down!’ and ‘I feel put down’. They may look the same, but the first is accusatory, judgmental, and divisive; whereas the second is more objective, conciliatory, and helpful.
We must avoid the formation of cliques within the team. Naturally we’re all going to feel more friendly and comfortable with some team members than with others, so be super careful to avoid arousing the suspicion in any member that you are gossiping about him or her with another member.
"So much for the ground rules. Later on we’re going to need to come to agreement on a lot of other rules or procedures for the team, or the real work of the team, but for the time being it will be helpful if we all stick to these rules."
"In a few minutes we’re going to spend about half an hour on a simple communications exercise that will, if we give it a chance, quickly help us to know and talk to each other better, but before we do, let me read three statements, the book calls them ‘axioms’ or ‘self-evident truths’ about unions and negotiations." (Read the three axioms starting on page one and ask the team members to think about them but to hold off discussion).
"Now for the communications exercise. We’re going to divide the team into groups of three (depending on the size of the team, there may be one group with two or four members). Each group is to find as private a spot as possible - in the comer of the room, in another room, or even outside and spend approximately thirty minutes taking turns in the following roles":
Members of each group should rotate the roles until every member has played each role. In a group of two, the observer role is eliminated. In a group of four there are two observers.
After all groups have completed the exercise, the team reconvenes and each member should, in turn, tell the group as much as s/he can about the talker to who s/he listened. This description should not be merely a repetition of the words spoken during the exercise but should be rather the reaction of the listener to the total message - not only what was said but the tone and manner in which it was said and how the participants felt about it.
After each listener has finished, the talker who s/he described should react to the description through corrections and/or amplifications and additions.
The exercise can either be ended at this point or can be considerably extended by asking the talkers to describe their listeners. How well did they do their job? What could they have done to make the talker more comfortable? The observers can also report their observations and then, perhaps, every member can attempt to point to examples that may have surfaced during the reports of how talker, listener, and observer all perceived the same piece of information in a slightly different way.
The entire exercise can be repeated with the same or different groupings or similar exercises designed to help team members learn about and talk easily with each other can be improvised or borrowed from one of the sources listed in the bibliography.
By the end of the first session, the team members will normally have made rather dramatic progress toward their goal of learning to work together as a team. Indeed, the great danger frequently is that the progress will be over-estimated and the members will conclude that the job is finished. It is not. The pressure that the team will face - from management, from the membership and from economic and budgetary realities - are greater than any of the team members are likely to fully appreciate and the team needs much, much more practice in functioning as a team in order to withstand those pressures.
Of course, there is the possibility that there will not have been dramatic progress during the first session. Encouraging people to communicate openly and freely will normally have salutary effects but it can also open some very troublesome cans of worms. Some members of the teams may have had smoldering between them angers and jealousies that are easily unleashed by any effort at communication and the situation may appear hopeless.
All is not necessarily lost, however. Indeed, if they can be dealt with, it is far better for the animosities to have surfaced rather than having been swept under the carpet - because in the heat of negotiations they will come out anyway. The thing to do is to say, "Okay, we’ve got problems. Boy do we have problems. All of us want to negotiate the best contract possible for ourselves and for the membership. We can only do that if we can work together as a team. If we can somehow learn to trust and support one another. Let’s go around the group and see if together we can come up with some solutions to the problems."
It has been the experience of the authors that most such problems can be solved and more than once we have seen two close to violent enemies call a truce in order to work together, on a limited front, toward a common goal ... ending up after the negotiations as close friends. This is not necessarily the case, however, and it is possible that divisions within the team could be so irreparable that they could be solved only by resignations.
Ordinarily a team should have met together to develop and practice its team skills for the equivalent of several days before it begins to cope with its real job: Negotiations. By this point it will be useful if the team has selected or agreed to the appointment of a team chairperson and a spokesperson/chief negotiator and agreed to some ground rules that ideally should include the following:
An effort will be made to reach all team decisions by consensus but should a vote become necessary, every team member will support the decision of the team even if s/he votes on the losing side.
As the team begins the job of preparing for actual negotiations, the chairperson should take care that each team member has meaningful assignments. Each member may, for instance, be assigned the responsibility of becoming the team’s expert on a particular contract area - wages, fringes, retirement, health, grievance machinery, etc.
The training of the negotiations committee will be considerably different from that of the team since the committee members will be doing most of their work individually and not as part of a team or committee.
Financial Information for Collective Bargaining
Obtaining information about the company for collective bargaining is a difficult, but vital, part of the preparation for negotiations. This outline provides a step by step guide to help unionists find information concerning their employer.
There are many sources of information about the company and the industry that the union should be sure to utilize. Some, while obvious, are easy to overlook. All involve time. The list below is not in order of importance.
For small companies, the local newspaper will frequently be the only source of ready information concerning the general health of the company. Union members should watch for articles concerning the company (and its competitors, and clip these articles for the union’s records).
Occasionally, the local library will maintain a vertical file that includes articles on local companies. However, this practice is not as widespread as it used to be, so the union cannot rely upon the library to do this job.
If the union has not maintained such records, or if information on another branch or a competitor from another town, state, etc. becomes necessary, it is often possible to call the newspaper in that locality and obtain a listing of dates when relevant articles were published, or copies of the articles themselves.
The union will want to understand the state of the industry as a whole. Information on this topic that cannot be obtained from the International can be found by using The Reader’s Guide to Periodical Literature at the local library. There is likely to be a subject heading for the industry and a fist of recent articles in popular business and general magazines. The Reader’s Guide, however, will not list articles published in trade publications, etc. If there is a magazine that deals with the specific industry, the local should have a subscription.
General Business Publications of Note:
Business Week, Industry Week, Fortune, The Wall Street Journal. [Most local libraries will subscribe to these publications.]
If the company provides information to the workers (such as a newsletter or announcement sheet), the union should scrutinize these as well. The company may applaud workers for a "job well done", or for helping make a "profitable quarter", etc. If the company changes its tune during negotiations, the union will know.
Most companies (and virtually all publicly owned companies) issue yearly financial statements. The union should obtain these. If the company sells stock, the union becomes entitled to the financial report by purchasing a share of the stock. If the company is privately owned, the union might attempt to obtain a copy of the financial statement by asking the company for it. It should be remembered, however, that internal financial statements are necessarily accurate.
A much more valuable body of information is wage and hour information that the union is entitled to for negotiations. The courts divide information available from the employer into two groups: wage data and financial data. In general, the first group is always available to the union.
"Wage data" has a broad meaning. It includes the names and addresses of all employees in the unit (union members and non-members), wages of employees, job rates and classifications, time study data, pension information, insurance data, incentive earnings. In general, the employer must supply all requested wage data that is not obviously beyond the needs of the union. If the employer refuses to do so, the employer becomes liable for a refusal to bargain charge. [The employer’s only defense would be either that the information requested was not obviously relevant, or that providing such information would be enormously burdensome to the employer.]
"Financial data" is all data relating to sales, profits, and production data. In general, the employer is not required to supply this type of information to the union during negotiations, unless the employer makes his inability to pay a subject of negotiations. However, even here, the NLRB will not automatically find a refusal to bargain. The decision will hinge on the facts of the particular case.
Many states and large localities publish business directories. Frequently, the Chambers of Commerce or other business groups will compile a book that contains information about each company in an area. Since these books are not standardized, the type of information available in them varies. However, they should not be ignored. Most local libraries will carry these directories.
All corporations, whether privately or publicly (through stock) owned, must be licensed in each state that they do business. Requirements vary from state to state, but in many states the corporation is required to file a brief statement. Usually on a yearly basis.
Each state requires the company to reveal the names of subsidiaries and fictitious names under which it operates. These are frequently filed in such a way to make it easy to learn if the company is larger than it might appear.
In Pennsylvania, the Department of State, Corporation Division, is the office in which such information is filed. Unfortunately, Pennsylvania’s system does not make it easy to utilize this office. Further, Pennsylvania does not require the filing of financial statements.
Large, publicly traded companies are required to file many federal documents relating to their finances. In addition, there is much information available from stock analysts, etc. who scrutinize large companies to determine their soundness for investors. The attached summary of these documents describes the information available. We have developed a step by step system designed to first determine if this information exists, and second to deliver it into the hands of the union. The procedure can be adapted as necessary, and should be understood as a working guide.
The most important thing to remember about obtaining official information is that it takes time. One cannot expect to get government documents quickly.
Procedure
The best directory to start with is called the Directory of Corporate Affiliations, better known as Who Owns Whom. By looking for the company name in this directory, one can team if the company is actually a subsidiary of a larger company, and what the other subsidiaries of the large company are. Likewise, if the company under study is a "parent" company, Who Owns Whom provides a listing of the subsidiaries.
After searching Who Owns Whom, you might want to check other corporate directories which provide more information. Among the best are Standard and Poor’s Register of Corporations, and Dun and Bradstreet’s Million-Dollar Directory. The Million-Dollar Directory also contains some information on large private companies. Standard and Poor’s and Moody’s publish many volumes of corporate analysis, including financial statements and investment information of all major public corporations.
To receive these documents, write to the Public Reference Section, Security and Exchange Commission, 1100 L St., N.W., Washington, D.C., 20549. Be as detailed as possible concerning which reports are desired, the name of the company, and the year(s) for which you desire information. Be prepared to wait for the documents.
In an emergency, a company called Disclosure, Inc., provides the same service as the Public Reference Section of the SEC for more money but in better time. Disclosure has a toll-free number (800) 638-8241 for clients to call. The company will tell you the most recent filings by a company, and will quote a price of what copies will cost. You can also place a standing order with Disclosure to receive copies of filings as soon as they are available. Disclosure also publishes a booklet listing companies for which information is available.
Even if the local does not own stock in the company, it may still be possible to receive this report and to receive informative analyst’s report on the health of the company. To do this, the union needs only "shop" for stock at any investment brokerage. By expressing interest in the company, the union will encourage the stockbroker to supply these documents.
NOTE: There are two sourcebooks that make the job of determining whether a company is public easier. Both are available at the best local libraries, or at the libraries of colleges and universities which teach business. The first is called Directory of Companies Filing Annual Reports with the Securities and Exchange Commission. It lists all companies (but not subsidiaries) which file 10-Ks and 10-Qs. A second excellent sourcebook is called Directory of Securities Research. This book will tell you which analyst and brokerage firm has studies the company you are interested in. It makes the job of finding an analyst’s report easier.
After this round of negotiations is complete, begin researching for the next round. Keep files on all information gathered about the company during the term of the contract, and the financial research for the next contract will be much simplified.
Additional DOL Information
DOL forms EBS-1, 5500, and Summary Plan Description. These forms are filed by companies to inform the Department of Labor and the IRS about their insurance plans, pensions, and profit sharing. All are useful. Form 5500 contains a detailed income statement and balance sheet on the particular plans. The other two forms should be acquired at the same time, seeing that all three can be obtained at the same price: The nearest IRS service center. You can also contact the U.S. Dept. of Labor, Office of Pension and Welfare Benefit Programs, at (202) 523-8771.
As a general rule unions can request and employers must provide information "relevant" to the processing of grievances. Failure to supply such information subjects the employer to a refusal to bargain charge under Section 8(a)(5) of the National Labor Relations Act. Underlying this basic rule is the concept that "arbitration can function properly only if the grievance procedure leading to it can sift out unmeritorious claims". Unions, therefore, need access to information that contributes to an "intelligent" evaluation of grievances filed.
However, the right to information, like other rights, is not unqualified. First, a labor organization must show that the information being sought from the employer actually is "relevant" to the grievance(s) being processed. Unions cannot use their right of discovery to undertake a "fishing expedition" for any information they might like to see. Second, a union’s request for relevant data will be upheld by the NLRB where alternate means of obtaining it are unavailable under the contract and where the union asserts a statutory right rather than a contract right.
Finally, the Supreme Court, in Detroit Edison Co. v NLRB (1979), rejected the "absolute rule" that relevant information demands must predominate over all interests. In that case, the NLRB ordered the company to supply the union with employee test scores, including the names of the workers. The Court found that the company was correct when it refused to release the scores except upon written consent of individual employees. Further, the Court held that the employer’s concern for preserving the secrecy of the tests was well demonstrated and valid. In effect, the Court said that a union’s proof of the information’s relevance will not always "predominate over all other interests", i.e. individual privacy, overriding business concerns - trade secrets, etc.
The NLRB and/or the courts have upheld the right of a union to the following types of information.
Basic information on wages, salaries, merit increases, job classifications, hours worked, overtime hours, and the wage history of employees.
Copies of correspondence between the employer and customers regarding removal of work during layoff periods which would normally be performed in the plant; names of companies to which work was subcontracted; copies of contracts in force between the employer and customers.
Information necessary to evaluate grievance concerning subcontracting while unit employees were on layoff.
Names of customers whose complaints were used as the basis for discharging employees.
Employee health and safety program data; monitoring and testing system, devices and equipment; statistical data relating to working conditions, to the extent that such information excludes identifiable medical data of individual employees. In certain situations, however, individual privacy may have to give way to the union’s need for medical data that reveal past effects of the workplace environment.
This identification of products that are regularly used, stored or produced that are suspected of being mutagens, sterilization agents or carcinogens, etc., except for items which are "trade secrets".
The workplace analysis portion of the affirmative action reports, e.g., statistical data relating to employment practices, current employment statistics broken down by race and sex.
Operating room and emergency room records of patients showing relevant information, i.e., medical staff time, medications ordered and given, etc.
Personnel files of a grievant who was denied promotion as well as the file of the person given the promotion. Personnel files of employees who grieved employer disciplinary warnings.
Where wages, fringe benefits and other costs of employing non-unit employees are clearly relevant to a pending arbitration case.
Even though a union is given other time-study data, it may also be allowed to conduct a non-disruptive time study to determine if it should seek arbitration of pending rate cases.
Records, over a five year period, of employees who had been fired, suspended or given final warning for using an "improper tone of voice" when speaking to customers (telephone company case).
Information about dividends and divided distributions from insurance benefit plans.
Average cost per hour for insurance, accident and illness insurance, long-term disability insurance, pension programs, Blue Cross and Blue Shield. This information, if available to the employer, must be provided even if the union could calculate it from time cards and other available sources of data.
In the following situations, the NLRB and/or the courts have held that an employer need not supply information to the union:
Unions are not entitled, prior to arbitration, to copies of statements collected by the employer from witnesses to an employee’s misconduct.
An employer does not have to supply wage data in the exact form requested by the union if an alternate form offered is adequate for bargaining purposes.
An employer can shield non-striking employees by refusing to supply the names of any employees without their written consent. Employer does not have to release medical records and sensitive information in personnel files without the consent of the employee involved.
Records which might otherwise be accessible to a union – job descriptions and evaluations – may be denied or limited to in-plant use if they also contain sensitive information on manufacturing techniques and processes, operating ratios, etc. In each situation, a determination must be made of the legitimacy of the employer’s desire to protect its "property right" to the confidentiality of processes, techniques or business data.
In negotiations, the sources of the union’s bargaining power are the ability of the industry to pay higher labor cost and the ability of the union to force industry to make them pay. Simply put, the union’s ability to make a company pay is based upon the "carrot and the stick", that is the threat of sanctions (strike) if they don’t pay, and the gains that an employer can get through productivity improvements if they agree to cooperate.
In all negotiations, the single most important factor for the union is the commitment and understanding of the membership of the union’s goals and objectives in bargaining. For both the carrot and the stick of the union depend upon the willingness of the members to either hurt the employer through a strike (or other job action), or to reward the employer through higher productivity.
However, other factors influence the outcome of negotiations. Included in these factors are the ability and experience of the chief negotiator, the strength and unity of the bargaining committee, external forces such as the bargaining patterns, unemployment, etc., the bargaining power of the company, etc. Also central to the bargaining is the legal context under which bargaining occurs.
In the private sector, the National Labor Relations Act, as amended, (commonly referred to as Taft-Hartley) governs negotiations between unions and employers. It spells out the guidelines by which negotiations are conducted. These guidelines include the procedural steps that the parties must take to modify an existing contract, identifies the duty to bargain of both parties, and includes Unfair Labor Practices (or illegal practices) that employers and unions are barred from using.
What Does the Law Require?
The law requires that where there is a collective bargaining contract, the duty to bargain collectively means that no party to a contract shall terminate or modify the contract unless the party desiring such termination or modification:
Serves a written notice of the proposed termination or modification
60 days prior to the expiration date, or if no expiration date exists, 60 days prior to
the time it is proposed to make such termination or modification.
Offers to meet and confer with the other party for the purpose of
negotiating a new contract.
Notifies the Federal Mediation and Conciliation Service (FMCS) within
30 days after such notice is given.
Additionally, both the company and the union are required to meet at reasonable times and to confer in good faith with respect to wages, hours and other terms and conditions of employment. However, the law requires that neither party be compelled to agree to a proposal or to make a concession. Here lies the paradox of the law, for while requiring "good faith" bargaining, it does not require that the employer make any concession nor agree to any proposal. The Board, in determining "good faith" often examine the "totality" of the employer’s conduct to determine if there was "intent" to reach an agreement. Intent is a very difficult to prove and the Board and the Courts have traditionally been very lenient to employers in granting them every conceivable doubt as to meeting the requirement of "good faith" bargaining.
Before going any further in looking at the law, let’s make an assumption that is all to often true. In negotiations, every union wants an agreement, while every employer would be more satisfied if the union would disappear. While it is not always true that the employer enters negotiations with the intent to bust the union, even in the many cases where the company agrees to a contract, most often they agree because the agreement is perceived as in the company’s interest and is preferable to a long, drawn out battle with the union. Put another way, rarely do we find employers who, if they had their wish, would not really prefer a loyal, docile and productive workforce who would gratefully accept whatever terms the employer offered.
It is therefore quite legal for an employer to come to the table with a demand for wage concessions, an increase in hours worked, and cutbacks in working conditions. They may stick to those demands throughout negotiations and never agree to any increase in wages or improvements in working conditions. And they would not be guilty of a failure to bargain in good faith. The fact that they may be making record profits would be totally irrelevant.
What is the remedy in cases where the employer actually violates the standards of the law and commits Unfair Labor Practices? The union must file charges that take months to through the procedures of the Board. Even in the case of total union victory, the remedy that the union receives is an order from the Board for the employer to bargain in good faith. That is, the employer is ordered to start over and correctly follow the procedure of bargaining as is required by the law. The company, despite violating the law, is not required to make any concession to the union or agree to any union proposal.
Subjects of Bargaining and the Types of Strikes
The law establishes three areas of bargaining: mandatory, permissive and illegal. Mandatory subjects of bargaining are those that require bargaining, such as wages and seniority. With mandatory subjects of bargaining, the union is entitled to conduct an economic strike in order to force an employer to agree with the union proposal or to at least force concessions from the employer. Permissive subjects of bargaining are those that may be discussed, but that the law does not require the parties to bargain about, such as retiree health care benefits. Illegal subjects of bargaining are those that cannot be brought to the table such as, in Texas, a union shop.
The law also establishes three types of strikes that can occur. The first is an economic strike. This is a strike conducted by a union in support of its position at the bargaining table. This is protected, concerted activity and economic strikers cannot be fired for striking. However, the employer has the right to hire replacement workers in order to maintain its normal business operation. These replacements may be hired as temporary or permanent. Economic strikers who have been permanently replace retain recall rights to their job as positions become available.
Unfair Labor Practice strikes are strikes that are held not in support of a position at the bargaining table, but rather are conducted because the employer has violated one or more of the ULP provisions of the law [8(a)(1) - 8(a)(5)]. ULP strikers may also be replaced, but only by temporary replacements and the strikers must be brought back to work at the conclusion of the strike.
Illegal strikes are those strikes that are in violation of a provision of the law or contract and, the striker loses all protection of the NLRA. The employer may discipline or discharge these strikers and they have no recall rights to their job.
Uses of the Law
Despite the obvious disadvantages of the law, there are a number of reasons why the union needs to be familiar with the law and its legal precedents on bargaining. Some of those reasons include:
An employer’s refusal or failure to bargain in good faith is an
unfair labor practice that might be useful to the union as the basis for an unfair labor
practice strike.
The employee's duty to bargain in good faith includes the obligation
to provide the union, upon request, information needed for the adequate representation of
its members.
Familiarity with the law will protect the union negotiator from an
unfounded reliance on its assistance in reaching agreement.
Union negotiators and leaders need to have a clear understanding of
the union’s right to refuse to bargain about internal affairs of the union.
The possibility of mid-term bargaining (the making of a demand to
negotiate on something not dealt with during negotiations) which the law protects but
which an unwary negotiator may lose through the bargaining process.
Negotiations and the Law
Discussion Questions
In the first three paragraphs a number of statements are made
regarding the relative power in negotiations. Do you agree with these statements? What, if
any, other factors affect the outcome of negotiations?
If you had your choice between the best negotiator who ever lived,
and a strong and committed membership behind the negotiating committee, which would you
choose and why?
Is the union required to submit a 60-day notice to the employer at
the termination of the contract? What happens if no notice is sent? Are there instances
where the union may not want to send the employer a 60-day notice?
What are the implications of the employer sending the union a 60-day
notice?
What are the advantages of the requirement to bargain in "good
faith"? What are the disadvantages?
What are the strategic differences between Economic Strikes and
Unfair Labor Practice Strikes? Under what conditions should the union engage in an
economic strike?
Negotiation is an art. As in piano playing and other arts, practice
is important. In negotiations there are no rules, this one excepted. To which there are no
exceptions.
Every member of the union team has a role to play. The negotiations
table is much like a poker table and it is the job of the spokesperson to decide when and
if hole cards are to be exposed. Do not undercut him or her by exposing those hole cards
through displays of anger, happiness, or amusement. Adopt a role that will convey to
management the total unity of the union team. Disagreements within the union team
(there’ll be plenty!) are appropriately dealt with in the privacy of a caucus.
Select a chief negotiator for the union team and respect that role.
NO other member of the team should speak except by direction of the chief negotiator. Do
not permit management to engage members of the union team in dialogue. If a management
representative asks you a direct question, politely request that the question be directed
to your chief negotiator.
Remember that your chief negotiator is under tremendous pressure and
needs your confidence and support. Do not add to his or her burden with trivial or
personal problems or through the introduction even of important problems or questions at
inappropriate times or places.
Be certain that you share all relevant information about the issue
under discussion with your chief negotiator.
Your demands must be credible. Management must believe that
you are serious, that your demands are not simply negotiating ploys and that you expect to
get what you are demanding. Amateurs violate this cardinal rule when, in selling a used
car, for instance, they use such phrases as "I’m asking $3,500 but make me an
offer". Clearly they’ll never get $2,500.
Disavow any intention to "play silly games",
"haggle", and "horse trade". Assert that you’re not even
interested in achieving unrealistic increases or benefits since they would not be in the
long-range interest of either side.
Don’t get carried away by you own b.s. Horse-trading is
the game and you’re going to end up with less than you ask. (If you don’t, you
probably didn’t ask for enough.) You’re going to have to almost convince
yourself that you will never settle for less than 10 ... and then settle for 8 ... and be
happy about it. Fortunate is the negotiator who represents members who also understand
this without having it spelled out in the union newspaper.
Treat the members of the management team with courtesy and respect but remember that you sit at the table not as an employee but as the legally certified representative of all the employees in the bargaining unit. The two teams meet as legal equals. Gently, but firmly, establish that equality and expect that you be accorded equal courtesy and respect. Some points to remember:
- Meeting times and places and procedural rules must not be dictated by management but can only be established by mutual agreement.
- Do not permit management to subtly establish a "master-servant" relationship. Do not call them "Mister" if they call you "Jim".
- Avoid using work problems of team members to illustrate your points. Use similar problems of others to avoid casting the union negotiators in the role of employees.
Know your adversary. Utilize all of your resources to learn
everything you can about the individuals on the other side of the table. Is there someone
there with a pet theory that shorter hours increase productivity? Someone who has a Friday
night poker game starting at 7? Someone who used to be president of a local union? Some of
the people on the other side of the table may have published books and articles. Read
them.
Generally it is better to meet on a neutral ground rather than on
management’s turf. This is especially important in private industry.
On every issue attempt first to reach a broad agreement in principle
and try to avoid, unless that agreement is reached, getting bogged down on specifics. Once
the agreement in principle has been reached, struggle to sweeten it on the specifics as
you draft the language.
Do not box management into a position from which they can not
retreat. Try to leave them a graceful, face-saving way to capitulate.
Regardless of what you suspect, or know, do not hesitate to assert at
the table that you are confident that the management representatives want to treat
employees fairly and that you are certain that they are skillful enough to draft, and
"sell", a collective bargaining agreement that will do that. In other words
here, and wherever possible, flatter. Remember that Disraeli, that negotiator par
excellence, pointed out that you should not hesitate to apply flattery generously except
in dealing with royalty where it should be applied with a trowel. Management
representatives frequently confuse themselves with royalty.
Search for arguments in support of your demands that are meaningful
to management. Ask for an extra week’s vacation after 20 years not because its
"fair" or has been "earned" but because it will reduce turnover,
increase efficiency, and save management money.
Search for and emphasize areas of agreement and be quick (not too
quick) to capitulate to management’s position on trivial and unimportant issues.
Remind management that you start with essential agreement on the mutual goal: to reach an
agreement on a contract that will treat all employees fairly and equitably; that will
attract and retain competent workers; that will save money by reducing the training costs
and inefficiency associated with employee turnover.
Forget about scoring debating points. Let management win all the
rhetorical points and you take the extra week’s vacation.
Establish your credibility with the management team. Do not give your
work lightly but once given, honor it. Be careful not to promise what you cannot deliver.
Avoid agreeing not to bring any additional demands to the table.
Point out that you will always try to reach agreement on all issues and that it could well
be that the introduction of a new demand could provide the key to agreement on other
issues.
Never lose your temper ... except by design and after careful
deliberation.
Do not threaten. And if the time comes to break this rule, deliver
your threat with calmness and sadness rather than in anger.
If there is any single "secret" to successful negotiation,
it is patience. A cast iron bottom is to be valued far above a silver tongue.
Patience and a cast iron bottom are important but the other side of
the coin is knowing when to say "yes," the ability to recognize when there is
nothing further to be gained (and possibly something to be lost) by additional stalling.
The ability to recognize this moment is perhaps the key attribute of a good negotiator.
Resolve doubts in favor of quick agreements on relatively unimportant issues; in favor of
further delay on important ones. Excessive reluctance to say "yes" is the most
certain indicator of an insecure and inexperienced negotiator.
Logic and reason should clothe every argument and support every demand - but in the end they count for little. Your negotiating success will depend on membership support - which is based on membership confidence and built on membership understanding. Obviously you cannot give every member every detail of each negotiating session - and certainly you cannot reveal the specifics of you bargaining strategy. All the more reason to concern yourself during and after each session with what and how you will communicate to (and with) the members. Communication should be a two-way street. Be alert for membership response and reaction.
You have reached the deadline for the contract to expire and all issues
but salaries are tentatively agreed upon. A mediator has been working with the parties.
She has observed the results of negotiations in other comparable plants and has a sense of
the two sides wishes with regard to contract length, and a general "feel" for
the situation which leads to certain "supposals" to be presented to each side
separately. The mediator has made the following supposals and it is up to the two teams to
reach agreement on which option is acceptable.
First year |
Second year |
Third year |
Expiration |
|
| A. | 8% |
8% |
8% |
|
| B. | 8% |
7% |
9% |
|
| C. | 7% |
8% |
9.5% |
|
| D. | 7% |
6% |
9% |
|
| E. | 8% |
8% |
12.5% (effective 6 months prior to expiration) |
|
Each person is assigned to a team. The teams should prepare to negotiate for either the union or for management. You will be assigned a side when you arrive at the table.
Before meeting with your team, calculate the value/cost of each option and, from your individual point of view, decide your priorities for both the union and for management. Use the guide below to record your choices.
UNION |
1 _____ |
2 _____ |
3 _____ |
4 _____ |
5 _____ |
MANAGMENT |
1 _____ |
2 _____ |
3 _____ |
4 _____ |
5 _____< |