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The Negotiating Process

In determining whether the parties are “bargaining in good faith”, the NLRB relies on it’s totality-of-conduct concept rather than looking at individual actions.

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Bargaining in Good Faith

Among the factors the Board examines as part of this totality of conduct are: Willingness to meet and confer at reasonable

times, and places.

Reasonable authority to negotiate.

Rejection of the other side’s proposals

without extension of counterproposal.

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Bargaining in Good Faith Open mind to consider proposals. Recognition of union’s exclusive right to

bargain - no direct dealing.

Dilatory tactics.

Surface bargaining.

Take it or leave it offers.

Requirement to provide relevant information.

Poverty pleas. Anti-union animus.

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Bargaining in Good FaithLegal Categories of Bargaining Issues

Mandatory

“You must talk to me”

Permissive

“Please talk to me”

Prohibited

“I can’t talk to you”

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The “Bargaining Procedures”Before bargaining over substance can begin, the parties must agree on a mutually acceptable bargaining procedure.

The following can be classified as procedural issues:

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Bargaining LocationOne of three places: Yours, Theirs, or Somewhere else.

Free from disruption, and fully furnished

with chairs, tables, blackboard, chalk,

paper, water, coffee, and good lighting.

Accessible at all hours, close to food and

refreshments, and adjoining caucus

rooms for both sides.

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Agenda SequenceThe typical approach for the parties is to negotiate over minor issues first.

The rational being that it is difficult to resolve minor issues if they are left for the later stages of negotiations.

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Authority to Make Firm Commitments

Under the law (NLRA), the negotiators on both sides must have the authority to make firm commitments on behalf of the principles.

This notwithstanding, the authority of negotiators varies considerably, and it is advisable to define the authority of both sides at the outset, reducing potential misinterpretations later.

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Working Drafts

In some bargaining situations, the parties exchange draft agreements.

This presents a procedural question as to whether to negotiate from the union draft, the employer draft, or the existing agreement.

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Procedures During Negotiations

The parties should establish a schedule and duration of negotiating sessions.

Time out for caucuses should be arranged, and some understanding needs to be established with regard to recordkeeping.

Some understanding should also be reached with regard to confidentiality.

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Stages of the Negotiating ProcessThe Opening

Characterized by the first meeting or set of meetings.

Typically the union presents all of its demands.

The next meeting or set of meetings is where management presents it own initial response to the union and submits its own demands.

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Stages of the Negotiating Process

The OpeningIt is in the opening that the limits of any potential collective bargaining outcome are set by the parties.

It is considered a faux pas in the negotiation arena to bring up completely new issues after this point in the process.

The number of proposals typically submitted by the union at the bargaining table can vary from a few to a few hundred.

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Stages of the Negotiating Process

The Settling-InCharacterized by a full discussion of each issue.

Detailed analysis of industry wage trends, local wage trend, and national price trends as well as any other supportive materials.

During this stage of negotiation, both sides try to resolve issues on which agreement can be reached easily.

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Stages of the Negotiating Process

The ConsolidationCharacterized by a fuller elaboration of positions by each side.

At this point we begin to see movement on some issues as each side begins to offer concessions to the other side.

We begin to see tradeoffs of small items, and the being of the discussion of the economic package (wages and benefits).

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Stages of the Negotiating Process

The ConsolidationBy the conclusion of this stage, most of the less important items or the more easily settled issues are taken-off the bargaining table either through agreement or abandonment.

At this point each side has a general feeling about the opposition’s true priorities.

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Stages of the Negotiating Process

The FinalizationThere are only a few items left on the table and they are important to both sides.

Generally, the finalization stage is accompanied by a change from what we might call more normal bargaining environment to one of crisis bargaining.

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Stages of the Negotiating Process

The Finalization

Crisis bargaining is characterized as much as anything by the behavior of the parties. That is, they recognize that there is a fast approaching time limit, so they bargain much more intensely, meeting on a daily basis and for longer periods of time.

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Every negotiating team should formulate a total plan of action,

and

Attempt to satisfy the need of it own constituencies.

Basic Negotiation Concepts and Techniques

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It has been suggested that Compromise means a giving up of something,

whereas Integration implies an attempt to satisfy the needs of both sides.

Mutual Gains(Integrative)Bargaining

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The philosophy of integrative bargaining stresses a participate working relationship between labor and management and a joint problem-solving approach to collective bargaining.

Mutual Gains(Integrative)Bargaining

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Another form of MGB through which objective sources are sought to settle disagreements on mutually agreeable terms without the necessity of one side’s losing face.

Win-Win(Principled)Bargaining

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Negotiations are viewed as problem solving sessions. The emphasis in bargaining is on each party’s interests rather than their positions.

Win-Win(Principled)Bargaining

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There are no ideal bargaining models or processes that would be appropriate for all bargaining parties.

There is no paradigms that would work well in all organizations.

Win-Win(Principled)Bargaining

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In the final analysis, the parties must be eclectic in deciding which bargaining approach would work best in their particular circumstances.

Win-Win(Principled)Bargaining