avant resources - maintaining the upper hand - winning strategies for labor negotiations

7/27/2019 Avant Resources - Maintaining the Upper Hand - Winning Strategies for Labor Negotiations

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Maintainingthe Upper Hand:

Winning Strategies for Labor Negotiations

By Mark Floyd

Wednesday, September 4, 2013


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n We encourage you to ask questions at any time using thedialog box on your screen.

n Questions are anonymous and will be answered in the orderreceived during the last 10 minutes of the webinar.

n We will answer questions submitted by email for 24 hoursfollowing the webinar. [email protected]

nThe material and forms provided are intended as generalinformation and is not a substitute for legal or other

professional advice.

How to Participate


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Collective Bargaining

n Overview of the Bargaining Process

n How to Prepare For Negotiations

n Preparing For The Potential Striken Implications of Contract Expiration

nImpasse


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Setting the Stage

n Its all about leverage

n The union's ultimate leverage is the threat of a strike

n A company goal is to minimize that leverage throughpreparation and careful consideration as to its

willingness to withstand a strike


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Company Considerations

n Can the company continue to supply or service itscustomers during a strike?

n Has the company ever withstood a strike in thepast?

n Can competitors chip away at the company's marketshare?

n Will the company's reputation be affected by thestrike?


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Union Considerations

n How many union members work in the facility? Canthey afford to be out of work?

n Is the union strike fund substantial?

n Is alternative work available for the strikers?

n Can the employer find replacements?

n Does the state where the facility is located provideunemployment compensation for strikers?


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Studying the Union

n Name and address of union(s) involved--international, local and district affiliates.

n Names and titles of officers.

n Constitution(s) and bylaws.

n Financial status of the union.

n Salaries and allowances of union officers and staff.

n Strike history.


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Studying the Union

n Record of contract administration.

n Availability of strike funds.

n Unfair labor practice history.n Record of other civil or criminal violations by the

union and staff.

n Other contracts entered into by the union.

n Details of union benefit plans, if any.


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Setting the Stage

n Initial Contract or Longer Term Relationshipn Drafting the Proposal

q Develop an understanding of the Work Flowq Company Policiesq Anticipated Issues: Overtime, Subcontracting, Use of

Temps, or Part-Time Employees, Grievances, ElectionPromises

q Sample provisionsn Meeting Arrangements

q Reasonable Time and Places


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The Negotiation Process

n Section 8(d):

"meet at reasonable times and confer in good faith

with respect to wages, hours, and other terms and

conditions of employment, or the negotiation of an

agreement or any question arising there under and

the execution of a written contract incorporating any

agreement reached if requested by either party."


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Factors Indicating Bad Faith

n "Surface Bargaining"

n Concessions. Proposals and Demands

n Dilatory Tacticsn Inadequate Negotiators

nConditions on Bargaining


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Factors Indicating Bad Faith

n Unilateral Changes

n Direct Dealing

n Failing to Meet at Reasonable Timesn Insisting on Permissive Subjects

nRegressive Bargaining


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Bargaining Subjects Under the

NLRA

n Mandatory Subjects of Bargaining

nPermissive Subjects of Bargaining

n Illegal Subjects of Bargaining

n The "It Depends" Category


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The Negotiation Process

n The Tricks of the Trade

n Responding to Requests for Information

n Negotiating to Impassen Communicating with Employees

nThe Effect of an Expired Labor Agreement


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Tricks of the Trade

n Control the negotiations by discussing the subjectwhich you wish to discuss and work from your own

proposals.

n Always make your own proposals.

n Take good notes.

n All of the employer's proposals are important.n Always trade money for language.


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Tricks of the Trade

nDo not agree to language until it is in the form inwhich it shall exist in the agreement.

n Do not restate the law or incorporate the law by

reference into the contract.

n Agree to as little language in the contract aspossible.

n Type and print your own contract.n Make the concessions come out of the union's

mouth.


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Responding to Information

Requests

n Confidentiality.

n Burdensomeness and Expense

n Relevancy.n Availability.

nDiscovery Purposes Only


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Negotiating to Impasse

A bona fide impasse has been defined as "a state of

facts in which the parties, despite the best of faith,

are simply deadlocked," or are at a "temporary

deadlock or hiatus in negotiations." Charles D.

Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404,109 LRRM 2257 (1982 ) . The impasse

determination, like that of "good faith" bargaining,

depends on the mental state of the parties and is

highly subjective. Whether an impasse exists is a

question of fact based on the totality of

circumstances.


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Factors to Consider

Whether a bargaining impasse exists is a matter ofjudgment. The bargaining history, the good faith of

the parties in negotiations, the length of the

negotiations, the importance of the issue or issues

as to which there is disagreement, the

contemporaneous understanding of the parties as to

the state of negotiations are all relevant factors to be

considered in deciding whether an impasse in

bargaining exists. Taft Broadcasting Co., 163 NLRB

475 (1967).


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Communicating with

Employees

Section 8(c):

The expressing of any views, argument, or opinion,

or the dissemination thereof, whether in written,

printed, graphic or visual form, shall not constitute or

be evidence of an unfair labor practice under any of

the provisions of this Act, if such expression

contains no threat of reprisal or force or promise ofbenefit.


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Communicating with

Employees

n Information on the status of negotiations;

n Explanations of positions previously advanced bythe company to the union; and

n Criticism of bargaining strategy and certain relatedtactics of the union leadership, which were the

asserted reasons for the inability to reach

agreement.


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The Methods of Employee

Communication

n Letters Mailed Directly to Employees

n Large and Small Group Meetings

n Bulletin Board Postings Regarding ContractNegotiations


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The Effect of an Expired

Labor Agreement

n [T]he collective bargaining agreement survives itsexpiration date for purposes of marking the status

quo as to wages and working conditions. The

employer is required to maintain that status quofollowing the expiration of the collective bargaining

agreement until the parties negotiate a new

agreement or bargain in good faith to impasse.

NLRB v. Carilli, 648 F.2d 1206, 1214 (9th Cir. 1981),

enforcing, 246 NLRB 833 (1979).


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Possible Exceptions

n Grievance And Arbitration Clauses

n No-Strike/No-Lockout Clauses


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After the Deal is Done

n Supervisory Training

nLiving by the Written Word


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Collective Bargaining

Questions?

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