978-1305576209 Chapter 9 Solution Manual

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CHAPTER 9

Resolving Negotiation (Interest) Disputes and the Use of

Economic Pressure

Outline

I. Impasse Resolution Procedures Involving a Third-Party Neutral

a. Mediation

i. Federal Mediation and Conciliation Service (FMCS)

ii. Mediators

b. Personal Characteristics

i. Tenacity

ii. Experience

iii. Emotional Intelligence

iv. Actively engaged

c. Mediator Activities That Promote Agreement

i. Timing

ii. Face-saving

iii. Settlement orientation

iv. Evaluative mediation

v. Relational or transformative mediation

d. Code of Conduct

i. Association for Conflict Resolution

ii. National Mediation Board

iii. American Bar Association

iv. American Arbitration Association

v. Code of Professional Conduct

vi. Code of Professional Responsibility for Arbitrators of Labor-Management

Disputes

vii. National Academy of Arbitrators

viii. Federal Mediation and Conciliation Service (FMCS)

e. Fact-Finding

f. Interest Arbitration

g. A Comparison of Three Interest Arbitration Procedures

i. Conventional Interest Arbitration

ii. Factors arbitrators may consider (Exhibit 9.1)

iii. Criticisms of Conventional Interest Arbitration

iv. Final-offer total package (FOTP)

v. Final-offer issue-by-issue (FOIBI)

h. Mediation-Arbitration (Med-Arb)

II. Other Third-Party Procedures

i. Alternative dispute resolution (ADR)

a. Arbitration-Mediation

b. Tri-Offer Arbitration

c. Double Final-Offer Arbitration

d. “Night Baseball” Arbitration

III. Strikes and Lockouts: The Use of Economic Pressure to Resolve Interest Disputes

i. Strike

ii. Primary employer

iii. Lockout

iv. Enforce a bargaining demand

v. Minimize employer’s potential loss

vi. Attempt to ruin local union

vii. Protect the integrity of a multiemployer bargaining unit

a. Replacement Workers during Strikes and Lockouts

i. Unconditional request for reinstatement

b. Types of Strikes

i. Legal strikes

ii. Illegal strikes

iii. Economic strike

iv. Unfair labor practice strike (ULP)

v. Wildcat strike

vi. Sympathy strike

vii. Jurisdictional strike

c. Reasons for Strike

Work stoppages (Exhibit 9.2)

i. Conclusions reached for causes of work stoppages (Exhibit 9.3)

ii. Protest strikes

iii. General strike

iv. Partial strikes

v. Work slow-down

d. Strategic Purposes of a Strike

e. Strike Experiences and Preparation

f. Preparation

i. Potential strike or lockout costs and mitigating actions (Exhibit 9.4)

ii. Continuing operations during strike

iii. Emergency strike manual

g. Reinstatement Rights of Unfair Labor Practice and Economic Strikers

i. Preferential recall list

ii. Laid-law-Fleetwood doctrine

iii. Reasonable time period

h. Unlawful Strike Misconduct

i. Serious strike misconduct

i. Employee Picketing Rights

i. Restrictions on the right to picket during labor dispute.

j. Secondary Strikes, Boycotts, and Picketing

i. Secondary employer

ii. Informational picketing

iii. Business ally

iv. Struck work

v. Sympathy striker

k. “Hot Cargo” Arrangements

i. “Hot cargo agreement”

l. Common Situs Picketing

i. Moore Dry Dock doctrine

ii. Lawful picketing guidelines

iii. Picketing between the headlights

iv. Reserve gate doctrine

v. General Electric doctrine

vi. Conditions prohibiting picketing at entrance

m. Product Picketing Rights

i. Informational picketing

ii. Product picketing

iii. Merged product doctrine

n. Handbilling Rights

i. Handbills (Exhibit 9.5)

IV. National Emergency Dispute Resolution Procedures

i. National emergency strikes

ii. Railway Labor Act procedures

iii. Steps in national emergency procedures (Exhibit 9.6)

Discussion Questions

1. What are some

similarities

and

differences

between mediation, fact-finding, and interest

Mediation is a process in which the neutral assists the parties in resolving their differences.

Unlike arbitration, mediators have no authority to make binding decisions, and, unlike fact–

2. What characteristics or qualities should a practitioner look for in selecting a mediator to

help resolve a labor dispute?

Besides factors like tenacity, experience, active, and independence discussed in the text,

3. Some have suggested that interest arbitration is problematic because outcomes are almost

always located between the two sides’ positions and frequently close to the midpoint

between their positions; thus, arbitrators seldom consider creative (“win–win”) outcomes.

Others have suggested that the time for creativity is before a dispute reaches arbitration and

arbitration is not designed for that purpose. Which position do you support? Why?

Interest arbitration involves the selection of a neutral person or panel to hear the bargaining

• Contracts in effect for longer periods of time cause private parties to be reluctant to

4. Compare any three of the following: final-offer interest arbitration, double final-offer

interest arbitration, night baseball arbitration, med-arb, arb-med. Which is “the best” (and

what do you mean by “the best”)? Why?

Final-offer total package (FOTP) selection is a form of interest arbitration that restricts an

Double final-offer arbitration (DFOA), asks each disputant to submit two package proposals

Mediation-arbitration (med-arb) is a hybrid alternative dispute resolution procedure

blending traditional mediation and interest arbitration procedures. Under the procedure, the

5. To what extent would you agree or disagree with the following statement: “Strikes are an

intrinsic and essential element of the collective bargaining process.” Explain your reasoning.

While this view has been expressed by labor relations scholars as well as labor leaders,

6. What types of preparation do management and union leaders need to engage in prior to a

work stoppage?

7. What are some potential costs or risks parties face during a work stoppage, and how may

such costs or risks be reduced or minimized?

8. If you were a secondary employer confronted with a threatened product picket action at

your retail store, what factors would you consider in deciding whether

voluntarily cease

sales or continue to sell the primary employer’s products during

he labor dispute?

Factors to consider include:

9. Should employees engaged in lawful strike activity be protected from permanent

replacement? Explain your reasoning.

Yes. Allowing employers to use striker replacement can negate the effect of the strike on the

Exploring the Web

Strikes, Lockouts, and Collective Bargaining

1. Bureau of Labor Statistics Reports on Collective Bargaining

2. Collective Bargaining and the U.S. Code

Suggested Readings and Term Paper Topics

1. What can labor-management mediators learn from community mediators?

Possible references:

Coletta, C. (2003). How police departments can benefit from referral to community mediation programs.

Police Chief, 70, 8, 72-77.

2. What can we learn from the organizational “conflict management” literature that can

be applied to labor-management relations (e.g., negotiation, mediation)?

Possible references:

Cloke, K. & Goldsmith J. (2000). Resolving personal and organizational conflict: Stories of transformation

and forgiveness. San Francisco: Jossey-Bass.

3. Critique the mediation efforts of the U.S. and NATO (e.g., the Dayton Accords, Cyrus

Vance’s and/or Lord David Owen’s efforts) to find a solution to the war(s) in (what was

once) Yugoslavia. What were their successes and failures? How did their efforts match

with mediation theory and research? What advice would you offer for how to mediate

differently?

Possible references dealing with Yugoslavia:

—–(Feb. 6, 1993). Ex-Yugoslavia: Peacemongers. Economist, 326, (7797), 52-54.

Possible references dealing with mediation theory:

Carnevale, P. J. D. (1986). Mediating disputes and decisions in organizations. In Lewicki, R. J., Sheppard,

B. H., & Bazerman, M. H. (Eds.) Research on negotiation in organizations, Vol. 1. Greewich, CT: JAI

4. What can labor-management mediators learn from cross-cultural psychologists?

Possible references:

Deutsch, M., & Colman, P. T. (Eds.) (2000). The handbook of conflict resolution: Theory and practice. San

5. Analyze the use of lockouts during labor negotiations. Do there seem to be a variety of

reasons lockouts are used? What advice would you offer either [pick one] (a) union

leaders on how to cope with management lockouts or (b) managers on when and how to

use the lockout as a strategic weapon in negotiations.

Possible references:

Bandzak, R. A. (1992). The strike as management strategy. Journal of Economic Issues, 26, (2), 645-660.

Church, R., Outram, Q., & Smith, D. N. (1995). Down and out in Wigan and Barnsley: British coal mining

6. What factors predict the likelihood of a strike?

Possible references:

Card, D. (1990). Strikes and bargaining: A survey of the recent empirical literature. American Economic

7. How (if at all) does the knowledge gained from studies of international mediation apply

to labor-management mediation?

Possible references:

Arad, S., & Carnevale, P. J. (1994). Partisanship effects in judgments of fairness and trust in third parties in

Touval, S., & Zartman, I. W. (eds.) (1985). International mediation in theory and practice. Boulder Co:

Westview.

Wall, J. A. Jr and Druckman, D. (2003). Mediation in peacekeeping missions. Journal of Conflict

Resolution, 47, 5, 693-705.

8. How (if at all) does the knowledge gained from studies of divorce mediation apply to

labor-management mediation?

Possible references:

Coulson, R. (1996). Family mediation: Managing conflict, resolving disputes (2nd Edition). San Francisco,

CA: Jossey-Bass.

9. What role, if any, should “corporate campaigns” play in the labor movement?

Possible references:

Jarley, P., & Maranto, C. (July, 1990). Union corporate campaigns: An assessment. Industrial and Labor

Relations Review, 43, 505-524.

10. What factors influence union member loyalty to their union leaders when the union is

considering going on strike? Support your position.

Possible references:

Barling, J., Wade, W., & Fullagar, C. (1990). Predicting employee commitment to company and union:

Divergent models. Journal of Occupational Psychology, 63, (1), 49–61.

a faculty strike. Journal of Labor Research, 16, 331-347.

11. Suppose you were going to give me advice: If I do research on mediation, what exactly

is it about mediation that you feel I should be studying? Why? What does current

research say about the specific aspect of mediation that you feel is important? Briefly

describe that all-important “next study.”

Possible references:

Achterkamp, M. and Akkerman, A. (2003). Identifying latent conflict in collective bargaining. Rationality

& Society, 15, 1, 15-43.

Deutsch, M., & Coleman, P. T. (Eds.) (2000). The handbook of conflict resolution: Theory and practice.

12. Suppose I wanted to become a professional mediator. What would I have to do? Could

I just hang out my shingle advertising myself as a mediator? Or would I have to pass a

state exam? Get an advanced degree? What legal regulations (if any) should exist for

those who want to practice mediation? If you advocate professional training to become

a mediator, then what should mediators study?

Possible references:

Goldberg, S. B. (April, 1994). A qualified mediator’s skills don’t depend on experience. National Law

Journal, 16, (32), 14-24.

13. How well does environmental mediation work? What do environmental dispute

resolution techniques and procedures tell us about how to resolve labor-management

disputes (if anything)?

Possible references:

Bingham (1986). Resolving Environmental Disputes: A Decade of Experience. Washington D.C.: The

Conservation Foundation.

14. The Bureau of National Affairs (BNA Books) publishes an annual review of third party

work in the labor relations field, called National academy of arbitrators: Proceedings

of the annual meetings. Although most articles deal with arbitration, a few deal with

mediation. Critique the trends in labor-management mediation since 1980. What points

do you agree with (and why)? With what points do you disagree (and why)? What

recommendations do you make for improved labor-management mediation?

Possible references:

Carnevale, P. J., & Pruitt, D. G. (1992). Negotiation and mediation. Annual Review of Psychology, 43, 531-

15. Many negotiators (e.g., attorneys, labor leaders) are accountable to constituents. In

what ways does high versus low accountability affect negotiator behavior?

Possible references:

Adams, J. S. (1976). The structure and dynamics of behavior in organizational boundary roles. In M.

Dunnette (ed.) Handbook of Industrial/Organizational Psychology. Chicago: Rand McNally, 1175-1200.

16. Should companies be able to hire permanent replacement workers during strikes? Why

or why not? Be sure to support your position.

Possible references:

—–(January, 1993). One strike and you’re out? Creating an efficient permanent replacement doctrine.

Harvard Law Review,106, 669-686.

17. Critique the Phelps-Dodge crisis of the early 1980s. What caused the crisis? What

solutions should have been implemented? Why?

Possible references:

—– (December 21, 1981). Copper slump forces close down. Forbes,128, 51-52. (August 22, 1983). Phelps-

18. Many union leaders are suspicious of Quality of Work Life (QWL) programs. Should

they be? Why or why not?

Possible references:

Cowley, J. C. (1981). Negotiating quality of worklife, productivity, and traditional issues: Union members’

preferred roles of their union. Personnel Psychology,34, 309-328.

19. Interview a labor leader or manager in a firm where the union called a strike. How did

their experience correspond to or differ from the information in the text?

20. Pick a position: Mediation is or is not similar to the consideration/initiating structure

leadership theory.

Possible references:

Bass, B. M. (1990). Bass & Stogdill’s Handbook of Leadership: Theory, research, and managerial

applications, Third Edition. NY: Free Press.

Bigoness, W. J., & Kesner, I. F. (1986). Mediation effectiveness: What can we learn from leadership

21. Using your knowledge of research methods, design three studies to assess “mediator

style.” Use any of the current mediation models assist you. What will the world learn

from your research?

Possible references:

Baker, C., & Ross, W. H., Jr. (1992). Mediation control techniques: A test of Kolb’s “Orchestrators” vs.

“Dealmakers” model. International Journal of Control Management, 3, 319-341.

22. Some writers argue that labor-management negotiations should do more than resolve

the issues at hand; they should seek to build an overall cooperative relationship.

Critique these arguments. What problems do you see with this recommendation? How

can these problems be overcome? Or should negotiators stick to negotiating the

problem at hand, and not worry about the relationship?

Possible references:

Bush, R. A. B., & Folger, J. P. (1994). The promise of mediation: Responding to conflict through

empowerment and recognition. San Francisco: Jossey-Bass.

23. Suppose the UAW hired you as a consultant. Write a paper to UAW leaders on the

topic: “Should the UAW continue the cooperative projects begun with auto makers in

the 1980s? Or should these be abandoned?” Support your position.

Possible references:

Blackard, K. (2000). Managing change in a unionized workplace: Countervailing collaboration. Westport,

CT: Quorum.

Kelly, M. (1991). The adventures of a self-managing team. San Diego: Pfeiffer.

24. Analyze either (1) Henry Kissinger’s efforts to mediate an end to the Arab-Israeli war

(1973-1974) or (2) Jimmy Carter’s efforts to mediate the Camp David Accord (1978)

between Israel and Egypt.

Possible references:

Carnevale, P. J. D. (1986). Strategic choice in mediation. Negotiation Journal, 2, 41-56.

25. Should unions endorse or reject the “team concept” as the future of the workplace?

Why or why not?

Possible references:

Deshpande, S. P. (2002). The impact of union elections on HRM practices in hospitals. Health Care

Manager, 20, 4, 27-35.

Parker, M. & Slaughter, J. (1990). Choosing sides: Unions and the team concept. Detroit, Mich.: Labor

26. How does Freud‘s psychoanalytic theory help us understand labor-management

relations (including collective bargaining)?

Possible references:

Freud, S. (1955). Group psychology and the analysis of the ego. Standard Edition, Vol. 18. London:

Hogarth Press (originally published 1921).

27. Critique the Hormel strike in terms of social psychological phenomena related to the

escalation of conflict and power. In other words, see if you can explain the actual

behaviors by using these psychological concepts. Also, what has happened since the

strike? Did Hormel exploit its power? If so, how? If not, why do you think they didn’t?

Possible references:

Holmes, J. G., & Miller, D. T. (1976). Interpersonal conflict. In Thibaut, J. W., Spence, J. T., & Carson, R.

C. (Eds.) Contemporary topics in social psychology. Morristown, NJ: General Learning Press.

28. Have the number of strikes increased or decreased during the last 20 years? Are they

longer or shorter today than 20 years ago? What factors account for these trends?

Possible references:

Barnett, V. (2003). The use of information technology in a strike. Journal of Labor Research, 24, 1, 55-72.

Cramton, P. C., & Tracy, J. S. (1994). Wage bargaining with time-varying threats. Journal of Labor

29. Do women mediate differently from men? If so, how (and what difference does it

make)? If not, why not? What can we learn from this topic?

Possible references:

Bolinski, D., & Singer, D. (Sept., 1993). Why are there so few women in the ADR field? Arbitration

Journal, 4S, 61-65.

Deutsch, M., Canavan, D., & Rubin, J. (1971). The effects of size of conflict and sex of experimenter upon

30. Write a paper analyzing one of the newspaper strikes from the 1990s: the 1990 New

York Daily News strike, or the 1996 Detroit Free Press strike. Write a detailed case

analysis. What are the major events of the case (no more than four pages)? Don’t just

give me a chronology; analyze the events. How can you relate these events to models of

bargaining or of industrial relations from this course? If you prefer, you can write

about both strikes and compare them — double your pleasure!

Possible references

Garneau, G. (Jan. 16, 1993). Zuckerman takes the helm. Editor & Publisher, 126, (3) pp 12 & 43.

Vigilante, R (1994). Strike: The Daily News war and the future of American labor. New York: Simon &

Schuster Detroit:

Fitzgerald, M. (Sept. 28, 1996). Feeling the effects of a strike. Editor & Publisher, 129, 39, pp. 11 &36.

31. Labor unions have often used boycotts to further their goals (e.g., the California grape

boycott of the late 1960s secured recognition of Cesar Chavez’s United Farm Workers

union). Now, other groups use boycotts also (e.g., some groups are boycotting Chinese

products because of the way that government-run industries treat their workers).

Write a paper about “boycotts.” As you do so, you might ponder some of the following

questions: For what purposes has organized labor (and other groups) used boycotts?

Do boycotts work? Why or why not? Under what conditions are boycotts most

effective? Should they be used instead of or in addition to strikes?

Suggested References:

Fernandez, D. S. (1996, June 1). How one family came to boycott China. U.S. Catholic, 61, (6), 32.

32. Analyze the 1997 Teamster’s strike at UPS. Write a “teaching case” (with extensive

“teaching notes” relating the case to the course). Relate the case to bargaining and

strike theory and research (see below). You must do more than simply give me a

chronology of events leading up to and through the strike. You must analyze the case

and relate it to the text, readings, and/or class notes.

Suggested References

Belton, B. (1997, Aug. 20). Unions brandish renewed power. USA Today, B1-B2.

Bleakley, F. R. (1997, Aug. 6). UPS strike highlights part-timers’ role. Wall Street Journal, No. 26, A2.

Greenhouse, S. (1997, Aug. 7). For the Teamster’s leader, UPS is an ancient enemy. New York Times, 146,

No. 50877, page A1.

33. In 1996, Karl A. Slaikeu published a book, When push comes to shove: A practical

guide to mediating disputes (San Francisco: Jossey-Bass). How does the advice in this

book correspond to the scholarly research that has been done on mediation? Is his

advice consistent with the best empirical research and theory? Does it offer ideas for

future research studies?

Possible references:

Carnevale, P. J., & Pruitt, D. G. (1992). Negotiation and mediation. Annual Review of Psychology, 43, 531-

583.

Kressel, K. & Pruitt, D.G. (Eds.)(1989). Mediation Research. San Francisco: Jossey-Bass.