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Paul K. Rainsberger
It is impossible to do an effective job of negotiations with management without adequate preparation prior to the earliest bargaining sessions. This section addresses many of the specific tasks that need to be accomplished prior to the first bargaining session with management.
Size and selection of the bargaining committee
The actual size and selection of a bargaining committee will depend on the constitution and by-laws of the organization, the size and complexity of the bargaining unit and interests of the union. There needs to be enough representation on the committee that the tasks of the committee will be accomplished, but not so many people that will lead to difficulties in maintaining unity and order in the bargaining process. Committees with five to seven members are generally large enough to control the work of the committee without overburdening those members.
Whether a bargaining committee is elected or appointed, there are specific tasks that should be distributed among the members. One person should generally serve as the chief spokesperson for the committee. While that does not mean that other members will never speak, it does help to assure that the union committee is able to present a controlled presence in the bargaining sessions.
In addition to a chief spokesperson, one member should be specifically designated as the recorder or recording secretary for the committee. All members of the committee should be encouraged to take notes on the discussions with the company, but one person should be given major record keeping responsibility.
Although much of the attention in bargaining is focused on the work of the bargaining committee, there are other functions within the local union that can and often are organized to support the bargaining process. There may, for example, be a secondary level of activists that are charged with the responsibility for providing an effective liaison between the committee and the rank and file. Sometimes this group functions as an internal advisory body to assist the bargaining committee or as a communications committee to assure that information reaching the shop floor is accurate and appropriate. In other situations, there may be a committee charged with filling the same role with respect to media and community relations.
In all situations, it is important to remember that the process of bargaining goes beyond the closed doors of the actual meetings between the union and employer bargaining committees. A local may develop innovative ways to assure that support functions are addressed effectively, but some form of internal support system will almost always be useful.
There is no litmus test of personal qualities that make a person an effective negotiator. Generally, a union benefits from having a mixture of experienced and new negotiators on a committee but this is neither essential nor always possible. Experienced negotiators bring to the process the benefit of that experience while new negotiators may contribute innovation and creativity to a process that often becomes stagnant and predictable.
Knowledge of conditions of work and the interests of the membership is clearly relevant to effective negotiations. Other characteristics that are often associated with effective negotiators include:
- Patience, guts
- Personal credibility, stamina
- Persuasiveness, objectivity
- Timing, imagination
- Tact, self-confidence
- Flexibility, creativity
Of all characteristics that one can bring to the bargaining process, perhaps the most important is self-awareness and self-knowledge. There is no style or form of negotiations that is correct. If a person understands their own personality and style of interpersonal interactions, that person will probably be able to use that style effectively in negotiations.
The work of the committee
One useful method for the organization of the work of the bargaining committee and related tasks is the development of a detailed bargaining calendar. The preparation for bargaining can be divided into several broad phases with specific tasks that need to be accomplished outlined according to those phases. With a bargaining calendar, some aspects of preparation can be assigned specific deadlines to keep the preparation moving appropriately. Other phases, particularly once actual negotiations with the company begin, will be more conceptual. The bargaining calendar for one contract should end with ratification and begin with the ratification of the previous agreement. Effective bargaining is a continuous process. The following section outlines major phases in the preparation and practice of bargaining.
Phase one — general preparation
As soon as a collective bargaining agreement is ratified, it is important that the history of the parties under that agreement be documented. In preparation for future negotiations, the ability to document actual problems under the previous contract is essential for the preparation of proposals and the justification of changes in existing language. Documentation should include detailed records of grievances filed under the agreement by section and other problems that arise between the parties that are not adequately addressed by the existing agreement.
Beyond actual questions of contract interpretation and application, other disputes or problems arising between the parties should be documented. For example, if there have been any OSHA investigations, EEO charges or other administrative actions involving the company, they should be documented. Similarly, any incidents involving capital investment (or investment in other facilities), subcontracting, introduction of new technology or other matters having a direct or indirect impact on the bargaining unit should be noted.
The union should also track any significant changes in the law during the life of the contract. If new entitlement or regulatory programs are enacted during the life of the agreement, they may need to be addressed in the next negotiation. For example, when Congress enacted the Family and Medical Leave Act it had a direct impact on bargaining strategies for local unions across the country.
Phase two — planning
The work of the first phase of bargaining is continuous, but additional planning activities should begin as soon as a bargaining committee is constituted. From the time of appointment or election, the work of the bargaining committee should be organized. Key tasks for the members of the committee can be distributed and strategies for broader involvement of the rest of the leadership and membership can be developed.
Not all of the planning tasks of the bargaining committee have to be performed by members of the committee. For example, the planning process involves extensive research work in support of the bargaining agenda of the union. Research may be done by the committee, but it could also be done by other activists with specific skills and interests. Development of a thorough research agenda is a major element of the planning stage of bargaining. Specific forms of research that are useful in bargaining are discussed below.
Other planning functions involve the setting of goals and priorities for bargaining. Based on the documentation of problems under the current contract, many problem areas will be defined. However, planning also involves identification of the interests and priorities of the membership. It is in this phase that strategies for obtaining membership involvement in the development of demands may occur. This may be done through union meetings, surveys, personal contact or otherwise, but most bargaining committees will want some mechanism in place to generate membership participation in the process.
Planning should lead to definition of the goals and priorities of the union in the bargaining process. It should also involve analysis of the employer's bargaining strategies. Thorough preparation will allow the union to develop a reasonable picture of the likely goals and priorities of the employer in negotiations.
Phase three — preparation
In this phase, all details necessary for the first meeting with management should be completed. Proposals need to be drafted, a bargaining book needs to be assembled, internal membership support mechanisms need to be organized and notice of the intent to negotiate must be provided. Most of these issues are discussed elsewhere. Preliminary arrangements with the company must also be made, if for no other reason than to make sure that both bargaining committees show up at the same place at the same time when negotiations are ready to begin. At some point it will be time to sit down at the table and begin the actual negotiations with the company. The more that can be done before the first meeting with management, the better.
Early bargaining sessions
In the earliest bargaining sessions, it is common for the parties to discuss procedural ground rules and other arrangements that need to be resolved prior to discussion of the content of the parties' proposals. Custom and tradition between the parties may help to resolve most procedural matters, but occasionally significant changes in the way the contract will be negotiated are proposed.
It is also common for the early sessions to lead to the formal exchange of proposals so that there is at least some definition of the bargaining agenda early on. Initial proposals are often couched in broad and nebulous terms identifying more of the subject matter of bargaining than specific provisions for changes in language or economic terms. There is often considerable posturing during these early exchanges as both sides seek to emphasize the legitimacy and righteousness of their particular position on the issues. In the early meetings, little real bargaining over the substance of disputed issues is likely to occur.
Middle bargaining sessions
At some point after resolution of procedural issues and the initial exchange of proposals, with any posturing, the parties will begin serious discussion of the substance of the negotiations. These early substantive meetings will be very important in defining the bargaining climate between the parties. Most of the serious bargaining will be directed at secondary and non-economic issues, but how the parties approach these issues may provide a good indication of how they will approach the more difficult matters on the table. Even though the initial issues discussed are likely to be the areas of least disagreement or relatively minor matters, it is very common that more extensive discussion of these matters take place than will occur later. In bargaining, there is a tendency to fill the time that is available. The farther the parties are from the expiration date, the less urgent the discussions seem.
There are also institutional reasons for some delays in reaching agreement too early in the process. If a union bargaining committee comes to the membership with a tentative agreement too early, there will be some question of whether the committee could have done better by holding out longer. This may be an irrational reaction, but it does occur.
Crisis bargaining sessions
In the collective bargaining process, it has been said that ninety percent of the real negotiations takes place in ten percent of the time available. At some point, all eyes will focus on the deadline for negotiations, either the expiration date of the contract or any extension of that agreement. In the public sector, the deadline may be tied to specific dates in the public budgetary cycle or otherwise set by statute or regulation. However the deadline is set, it is likely that many important issues, including economic terms, will still be open. The intensity and tension of bargaining will increase and the process will become considerably more chaotic. At this point, it is important that the basic tasks of documentation and tracking of all proposals not be lost in the chaos. No matter how intense the bargaining becomes, the union does not want any issue to slip by without appropriate attention. Generally, all agreements reached on individual items are made contingent upon reaching agreement on the contract as a whole.
Beyond the actual negotiations, major strategic issues confront the union as the deadline approaches. If a settlement is reached, procedures to communicate the terms of the agreement to the membership and any ratification processes must be planned and implemented. Agreement must be reached on the conditions under which work is to be performed pending acceptance or rejection of any tentative agreement submitted to the membership. If a tentative agreement is ratified, the process of bargaining begins again.
If the parties fail to reach agreement by the deadline, there are several strategic options available. For private sector workers, use of economic pressure, including the strike, must be considered. If documentation concerning potential unfair labor practices by the employer during negotiations has been kept, this may be the time to initiate charges, particularly if the employer is likely to attempt to replace striking workers and maintain production. If the union is not in a position to strike, then it may be necessary to develop alternative strategies for working under contract extensions, without a contract or confronting a lockout. Under any of these alternatives, it will also be necessary to implement strategies to get the employer back to the table to continue negotiations.
Early in the bargaining process, a local union may want to develop a research agenda to gather data useful in negotiations. Although research methods are beyond the scope of this paper, there are some broad guidelines concerning types and sources of data that can be outlined. Generally, a union will want information in three broad categories, including information about the industry and employer involved, information useful in support of wage and benefit demands of the union, and information available from the company relevant to other issues in dispute. Many useful resources are available to the public at major research libraries. Developing a relationship with a research librarian and government documents librarian at the nearest public university library is always a good first step in the preparation of a research agenda. Increasingly, data is available on the Internet that is reliable and useful in preparation for negotiations. Putting members to work who frequent the Internet is a good way to build broader participation in the process of preparing for negotiations.
Industry and employer profiles
As discussed elsewhere, the relative economic health of the employer is relevant to union bargaining power. There are a variety of decent resources available that are useful to a union in the building of profiles on the industry in which their members work and the specific employer with which bargaining is taking place. The AFL-CIO and many international unions keep detailed records on many employers and industries. In addition, investor services, such as Moody's and Standard and Poors, are a good source of general financial information about specific publicly held corporations. Securities and Exchange Commission reports and some state records are often available as public information, usually at a price. The Department of Commerce and the Census Bureau are also good sources of information concerning specific industry trends.
Wage and benefit data
In determining the adequacy of their wages and benefits, many workers will look for comparability with other similarly situated workers. Wage and benefit comparisons are valuable tools for the justification of economic demands. Generally, two types of wage comparability data are relevant in the preparation for negotiations. One is comparability within the industry and the other is comparability in the geographic region. Extensive data are available through the U.S. Department of Labor and the Census Bureau for both industry and geographic comparisons. Industry comparisons may also be extracted from pattern agreements, usually available through other unions negotiating with employers engaged in the same industry. A third issue in determining wage proposals will be the impact of inflation. Cost-of-living data is available through the Consumer Price Indexes of the U.S. Department of Labor.
Some forms of information relevant to benefit costs may be available through state health or insurance departments. In many states, health departments track medical costs. This information can be useful in determining the reasonableness of cost and benefit issues under a negotiated health care plan.
Access to employer records
Many records of the company are also relevant to the union in the process of preparing for bargaining. As a general rule, the union is entitled to access to company records, other than financial records, if those records are relevant to a bargaining issue in dispute. This is a primary source of information concerning matters directly related to the bargaining unit and issues on the table in negotiations.
Preparation of demands
There are two aspects of the process of preparing bargaining demands or proposals. One is the question of what to propose, and the other is a matter of how to phrase those proposals. The substance of the proposals should reflect a balance between economic and non-economic issues and should be a realistic reflection of the broad concerns of the membership. Unrealistic dreams should be avoided as should proposals that offer no real benefit to the membership or the union as an organization. Contradictory goals of different groups of members should be resolved prior to the preparation of proposals. If a union has to make a choice between potentially conflicting interests, it should do so before entering into negotiations with the company.
The starting point for the drafting of a package of bargaining proposals is the old agreement, if there is one. In the negotiation of second and subsequent contracts, there will be many parts of the old agreement that will not be changed. A general proposal to leave those provisions of the old contract unchanged should be prepared.
For areas of the contract where changes are anticipated, the specific problems experienced under the old language should be identified. In some cases, problems arise over poor drafting of the old language. In other situations, the language is clear, but the union is dissatisfied with the provision as written. In either case, the "mischief rule" of contract interpretation provides guidance on how to draft new language. Under the mischief rule, it is presumed that all language is included in a contract for a reason. Some problem existed that lead to the language in question. The language was a proposed solution for that problem. The goal of drafting language is to curb the mischief and advance the remedy agreed to by the parties. If the union has a clear understanding of the problem that needs to be addressed and a clear solution for that problem, the proposal should be developed as a succinct statement of the solution.
Other rules of contract interpretation are also helpful in drafting proposed language. Careful drafting of proposals should avoid ambiguous language. Ambiguous language is language than can be read in more than one way. Draft language should be read as cynically as possible. If there is any way that a proposal could be read in a manner other than that which is intended by the union, it should be rewritten.
Unlike ambiguous provisions, the language of collective bargaining agreements is often vague by design. The parties negotiate broad provisions designed to address problems that may arise in different contexts. If language is unduly vague, drafting of proposals should be directed at the goal of providing more specificity, particularly when specific applications of that language has created problems. Particularly during early phases of negotiations, economic proposals are kept vague by design. It is customary not to put a dollar figure on the first submission of economic proposals. Because economic terms will likely be negotiated in late bargaining session, initial proposals often call for the "payment of a substantial wage increase" rather than a specific amount. This, of course, is subject to the custom and traditions of the parties.
Preparation of a bargaining book
Before the first meetings with the company, many locals prepare a bargaining book to assist in the organization of all materials that are or may be useful in the negotiations process. The following outlines some of the matters that might be included in a bargaining book.
- Cost of living data for the life of the past agreement
- Current cost of living index
- Wage comparability data
- Financial information about the company and the industry
- Cost of current fringe benefits
- Formulas for determining changes in benefit costs
- Costing data relevant for wage determinations and proposals
- Breakdown of employees by seniority
- Copies of pension and insurance plans
Contents relevant to specific proposals concerning language changes
- Old language from the previous contract
- Any relevant bargaining history
- Proposed new language
- Brief summary of justification for proposed changes
- Grievance records and other data supporting the proposed changes
- Room to compile a record of any negotiated changes in the language
- Room for notes relevant to negotiation of that language