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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
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
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
a
rb
it
ra
t
i
o
n
?
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
to
voluntarily cease
sales or continue to sell the primary employer’s products during
t
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
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
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.
