The process of negotiating a labor contract can be a very challenging task. The fact remains that disagreements will arise during some negotiation sessions. How labor and management handle these differences will impact the relationship between the two parties. Knowing up front that differences will occur is in everyone’s best interest. This allows everyone to plan ahead in the event that a disagreement presents itself.
Generally the negotiation process is broken down into three stages:
It is during the pre-negotiation stage that the two parties agree to negotiate the labor contract, propose the items to be negotiated, and establish the ground rules for the process. It is strongly recommended by experts in the field of labor relations that the two parties agree on an Alternative Dispute Resolution (ADR) for differences that may develop during the negotiation process. Some parties will agree to go directly to arbitration and this process creates a win-lose environment.
Limiting the number of people involved in the negotiation process will help increase the chances of ending a dispute. Additionally, team members should have experience in good- faith bargaining, resources to conduct negotiations, ability to work with tight deadlines, and ability to broker solutions for full agreements.
Generally while preparing the ground rules, the two parties may decide on which items will be discussed during the session. Limiting the number of items to be discussed will reduce the chances of ending in a deadlock.
During the actual negotiation stage, the following steps are generally taken:
During the negotiation, the chief negotiator should not take things said in the meeting personally and should never be envious of the progress the opposing side has made during the session. The negotiator should start the session with the idea that they are seeking cooperation and problem-solving approaches. Any session that starts off with a competitive or adversarial atmosphere does not often result in a favorable outcome. This approach should be avoided even if the opposing side starts first.
When a negotiator is faced with improper behavior, the best action is to call out the action to that person. Let the other person know that this type of behavior is unacceptable and the goal is to move forward without this type of behavior. The real challenge is that the negotiator should not hold a grudge against the person demonstrating the improper behavior. Simply put, be a forgiving participant (Brunet & Craver, 1997).
Once the agreement has been ratified by the negotiator’s constituency groups, the agreement will now need to be implemented. Up to this point, disagreements and deadlocks could have resulted. Documenting each step of the process in writing and the items upon which the two parties have agreed will help, in case an impasse develops. Having a dispute process agreed upon by the two parties before beginning the negotiation process will be beneficial in reaching a mutual agreement. Again, if the two parties agree to a dispute resolution process, the final settlement agreement must be in writing. In some cases, the two parties may reach an oral settlement or an agreement in principle in mediation. However, this settlement is very difficult for the courts or arbitrator to enforce if nothing is written down and documented. Just because the two parties attended mediation does not mean that a settlement agreement was reached (Cooper, Nolan, & Bales, 2000).
One consistency in labor relations is that from time to time, the two sides may not be in full agreement. The negotiation process is no different. The two parties’ interests are sometimes not reconciled, resulting in an impasse. In some cases, all it takes is one party’s unwillingness to settle any type of agreement to end up at an impasse. There are many reasons why a negotiation could end up in an impasse (Carrell & Heavrin, 2007).
During the negotiation process, the two parties will be faced with making difficult compromises. Some items may be well below what one party is seeking, and at the same time, much higher than what one party is offering. The difference between these can be light years away or very minor. As the two parties consider the separation between the offers, they must also take into consideration whether the difference is worth litigation or settlement. Emotions can play an active role at this point (Cooper, Nolan, & Bales, 2000).
When the negotiation process reaches an impasse, it must move forward to a third party for help or assistance in settling the differences, as a result of the agreement between labor and management. The two parties have various options to select from when it comes to Alternative Dispute Resolution (ADR). The use of ADR requires the use of an outside person called a third party. The third party may be the Federal Mediation and ConciliationService (FMCS), or the American Arbitration Association, an independent agency that provides meditation. Many states and local governments have a board to address impasse resolution for public sector negotiations. The two most common methods used today in settling impasses are the grievance process or mediation.
ADR involves the following:
The above steps to resolving a negotiation impasse are not all-inclusive. Any of the above steps can be combined to create a process that will be best suited for the two parties attempting to negotiate. When deciding the best approach to an impasse, the two parties often look to see if the differences are based on interest or rights disputes. It should be noted that private sector and public sector negotiations tend to differ on the process of resolving an impasse. Table 9.1 below illustrates how interest and rights disputes are handled in the private and public sectors.
| Private Sector | Public Sector | |
| Interest | Mediation Strikes |
Mediation Fact finding Arbitration Strikes (if allowed) |
| Rights | Grievances Arbitration as a final step |
Grievances Arbitration as a final step |
Table 9.1: Interest and Rights Disputes in the Private and Public Sectors
This module provided information on steps to be taken during the negotiation process to avoid an impasse. Disputes will happen during negotiation sessions and it is best to have previously determined rules as to how these disputes will be handled. Determining the best approach to resolving a dispute will depend on if the two parties are from the public sector or the private sector. The next consideration will be if the dispute is over interest or rights.
There is not a single best way to resolve a negotiation impasse. The strike action is the last resort for labor and management.
The previous module addressed the many reasons why an agreement may not be reached at the bargaining table. This module focuses on after the collective bargaining agreement (CBA) has been ratified and put in writing.
The CBA is a written legal document between the union and the employer. The terms and conditions found in the CBA are fully enforceable via the judicial proceedings at the National Labor Relations Board (NLRB) or the courts, through addressing differences via the grievance procedures upon which the two parties mutually agreed.
During the negotiation process for the CBA, labor and management can establish a grievance process that best fits their needs. Therefore, there is not one simple answer as to how grievances are established and executed. Some contracts only have two steps in the process, while others may have six steps, with binding arbitration as the final step. Three- step grievance processes seem to be the most common.
A grievance is a formal complaint filed by an aggrieved employee or a union steward to management. The grievance contends that a violation or misinterpretation of the CBA has occurred. Many CBAs require that the grievance be filed on an official grievance form, in writing, and filed within a set period of time after the alleged violation or when the union/member became aware of the violation. In the event that a contract does not have a timeframe, it would allow a grievance to be filed from five or ten years ago. In an effort to streamline the process and to ensure a timely settlement to the violation, it is important to identify a filing requirement.
After management receives a formal grievance, most CBAs establish a set timeframe for management to answer the grievance. Unresolved grievances can progress to the next step in the grievance process. In some special cases, a CBA may allow for a grievance to skip steps in an effort to expedite the process. For example, in a termination case, the grievance may be directed to arbitration immediately. The grievance is really between the union and management. The union can decide to file a grievance without the consent of the member.
As the grievance progresses up the steps, so does the level of union leadership involvement, as well as management’s involvement.
The goal at each step is to seek a settlement to the violation. Many grievances are settled at the lower steps or, in time, abandoned by the union. In some cases, the unsettled grievance is then forwarded to the arbitration process for a ruling. Many grievances are settled before the actual case goes before the arbitrator. A small number of grievances make it to the arbitrator and a ruling offered, compared to the overall number of total grievances filed (Cooper, Nolan, & Bales, 2000). It is important to remember that the grievance is nothing more than a formal process aimed at allowing a grievant to file a complaint and to receive a timely resolution to the issue. It is important to have the grievance resolved quickly to ensure that other violations are not accrued. Unresolved grievances can have a significant impact on the organization and on the morale of the workers.
Depending on the language in the CBA, the arbitration process may call for just one arbitrator or a tribunal of three to five arbitrators. Some CBAs will specifically name an arbitrator for the life of the contract. In other cases, the contract will call for a panel composed entirely of neutrals. An arbitrator is generally selected because of expertise in the subject area and the ability to act as a civil jury. The arbitration process is a means for people to seek adjudication other than a civil jury trial (Brunet & Craver, 1997).
The cost of arbitration is far less than seeking relief from the judicial system. The adversary approach used in court cases would significantly impact the labor relations between labor and management. The timeframe for requesting arbitration to the final ruling is far less than requesting a trial in a court of law.
In arbitration cases, the arbitrator will hear the case, review evidence, hear testimony, and may ask questions. In the end, the arbitrator will offer a written opinion. In the written opinion, the arbitrator will indicate how the final ruling came about, indicating the fairness of the ruling. This is often referred to as the due process of arbitration or industrial due process when it comes to labor arbitration (Brunet & Craver, 1997).
During the negotiation process, the two parties also need to agree on implementing dispute resolution procedures in the collective bargaining agreement (CBA). Generally, the CBA will have articles addressing the terms of enforcement and how unexpected circumstances will be addressed.
The National Labor Relations Board (NLRB) has authority to investigate unfair labor practices as listed in Section 8 of the National Labor Relations Act (NLRA). When one of the parties violates the CBA, that is not in and of itself considered an unfair labor practice. If the employer refuses to bargain the terms and conditions, the NLRB will investigate the labor organization or management to determine if the incident brought to the attention of the Board is a violation of the NLRA.
The state and federal courts have full legal power to enforce the CBA. The Lincoln Mills case, decided by the Supreme Court, stated that the employer must arbitrate a grievance as outlined in the CBA. Ruling that an employer’s agreement to arbitrate grievances is a trade- off for the union’s agreement not to strike. The second case in support of arbitration was the Steelworkers Trilogy case in which three Supreme Court rulings upheld the grievance arbitration process and limited judicial intervention (Carrell & Heavrin, 2009).
Labor and management could seek an injunction to restrain the other party to the conditions outlined in the CBA. For example, the employer could seek an injunction against the union if they went out on strike despite a no strike clause in the CBA. The Taft-Hartley Act left the door open for the federal courts to be utilized and also determined that unions are considered entities that can be sued for monetary damages (Carrell & Heavrin, 2009).
The use of economic pressure is often called a strike. Other economic pressures used may be a work slowdown or employer lockout. Over the years, many organizations have elected to have labor disputes ratified by the grievance or mediation process in an effort to include a no strike clause in the CBA. When a union takes a strike vote, they know that this action will hurt the individual member of the union but feel that the benefits outweigh the risks.
The NLRA prohibits four specific economic techniques (Holley, Jennings, & Wolters, 2009):
In the public sector, the process to resolve differences is slightly different than that found in the private sector. For example, for federal government employees, Title VII of the Civil Service Reform Act requires that the CBA be reduced to writing if one of the parties requests it. Keep in mind that wages and benefits are not subjects found in federal government CBAs. Federal law requires that grievance procedures with binding arbitration be included in the CBA. In the simplest terms, the Federal Labor Relations Authority (FLRA) does the same thing at the federal level as the NLRA does in the private sector.
State and local government employees are covered under individual laws and regulations crafted by the individual state.
No matter what type of relationship exists with another person or group, the fact remains that differences will be present. Many times these differences can be worked out, but in some cases the assistance of an outside third person may be needed to help bring the two sides to agreement. Labor relations is no different. Labor and management must have a formal process established for dispute resolutions.
One common process used in settling a labor dispute is the grievance process. The grievance process is widely used in settling differences in labor relations, contract issues, wage issues, and credit card billing issues. The benefits to the grievance process are that the process tends to be quicker and far less expensive than taking a case to a court of law. The drawback is that the grievance process tends to lend itself to a win-lose environment.
References:
Brunet, E. L., & Craver, C. B. (1997). Alternative dispute resolution: The advocate’s perspective. Charlottesville, VA: Michie Law Publishers.
Carrell, M. R., & Heavrin, C. (2007). Labor relations and collective bargaining: Cases, practices, and law (8th ed.). Upper Saddle River, NJ: Pearson.
Cayer, N. J. (2004). Public personnel administration (4th ed.). Belmont, CA: Thomson. Cooper, L. J., Nolan, D. R., & Bales, R. A. (2000). ADR in the workplace. St. Paul, MN: West Group.
Holley, W. H., Jennings, K. M., & Wolters, R. S. (2009). The labor relations process (9th ed.). Mason, OH: South-Western Cengage Learning.