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CHAPTER 6: NEGOTIATING A COLLECTIVE BARGAINING AGREEMENT
LABOR NEWS: CHICAGO CONSTRUCTION STRIKE IDLES HUNDREDS OF
PROJECTS
CHAPTER 6: OUTLINE
I. The Bargaining Process
A. People Who Bargain
1. Union representatives
a. Chief negotiator
2. Management representatives
a. Chief negotiator
B. Negotiating Skills
2. Ability to communicate clearly
4. Knowledge
5. Others
C. The Three Stages of the Bargaining Process: Preparation, Bargaining, and
Resolution
II. Preparation and Choice of Bargaining Items
A. Analysis Stage—information gathered and bargaining items selected
1. Borg-Warner Case—put issues in three categories.
a. Mandatory:
i. Can’t refuse to bargain on items in this category
b. Permissive:
i. A party must withdraw these items from bargaining if
c. Illegal:
i. Subjects deemed illegal can’t be proposed even if agreed
upon
ii. Separability clause—(68 percent of contracts) this
B. Sources of bargaining items
1. Most items introduced by union
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2. Solicitation of union membership
C. Planning stage
2. Realistic objectives
3. Strategy
III. Bargaining stage
A. Pressure Bargaining
2. Ultimate test—Union’s ability to strike vs. company’s ability to
withstand a strike
3. Pressure tactics:
. Good guy/bad buy
4. Response Alternatives:
a. Ignore
IV. Pressure Bargaining: Possible Strikes
A. CB breaks down, no agreement reached
B Calling a Strike(Fewer in recent years: Figure 6-2)
1. Union must weigh cost of strike against benefit.
a. Loss of wages
2. Management’s response
a. Strike plan
C. Why strikes occur
1. Poor assessment by parties to understand interest in critical issues
2. Why strikes occur
3. Clear Pine Mouldings, Inc.: NLRB ruled that verbal threats alone could
4. Unions affected by strikes 1993–1994
D. Types of Strikes
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1. Economic Strike—affects economic settlement—employee retains status
2. Unfair Labor Strike—protest violation of NLRA—employee retains
status of employee and is entitled to reinstatement and back pay.
E. Permanent Striker Replacement
2. After the PATCO strike, employers have been more willing to replace
F. Picketing. Usually occurs at beginning of strike to persuade members to join a
strike. Today picket lines are generally ineffective.
G. Lockout. Employer withholds employment to resist union demands or force
concessions (1990 baseball lockout).
1. Employer needs to consider loss of profits, loss of customers, and effect
H. No-Strike/No-Lockout Provision
1. Contained in most contracts
V. Resolution of Impasse- Alternatives to pressure tactics
2. Interest arbitration. Three-member panel makes a final and binding
decision.
4. Final-offer arbitration. Each party submits a final offer to a three-
5. Mediation-arbitration. Bring in a mediate with the authority to arbitrate
VI. Reducing Agreement to Writing
A. Duty to sign
1. Imposed by the Supreme Court—reduce to writing and sign
VII. Key Provisions of a CBA
A. Union Security
1. Union’s ability to operate without interference from management and
2.. NLRA
a. Guaranteed employees freedom to choose representative.
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b. Companies prohibited from forming company unions or
discriminating against union members.
c. Yellow dog contracts made illegal.
d. Blacklisting of union sympathizers illegal.
c. Taft-Hartley Act
i.. Guaranteed employee’s right not to organize and engage
in union activity.
ii. Closed shop clause outlawed.
B. Forms of Union Security
1. Closed shop. Required union membership before person could be hired.
2. Open shop. No requirement to join or support a union.
VIII. Right-to-work laws
A. States can enact legislation that in effect prohibits union and/or agency
1. shop clauses—a person has a right to work with or without joining or
B. Characteristics of right-to-work states
1. Low union membership. States with right-to-work laws have 9% lower levels
of union membership (union density)
IX. Employees in a unit represented by a union and covered by a collective bargaining
agreement who do not join union or pay dues.
X. Employees in a unit represented by a union who only pay to the union the part of the dues
determined to support the activities of the union in collective bargaining and grievance
process. No other union activity is included, such as lobbying or social events.
XI. Management rights
A. Arthur Goldberg – “somebody has to run the plant”
XII. Contract Bar
A. Current and valid contract can prevent another union from petitioning for an election
B. Characteristics of contract
1. Written
2. Signed
C. Open Period – Rival union may petition for recognition between the 90th and 60th day
prior to contract expiration.
XIII. Negotiating the Public Employee Contract
A. Bargaining process
B. Fundamental ideas same as for private sector.
C. Multilateral bargaining
D. Council form. A board or council returns a negotiated agreement for approval to final
authority.
E. Executive/legislative. Executive authority resides with president, governor or mayor;
legislative authority resides with congress, legislature or council.
F. Two parties make up management; CB agreement may be endorsed by executive but
rejected by legislative.
G. Open Negotiations
XIV. The Right to Strike
A. Usually denied in public sector
B. Arguments for allowing public employees to strike
1. Probably do it anyway, focus on strike, not problems.
3. Test union’s strength.
C. Arguments against allowing public employees to strike
1. Essential services can’t be held hostage to negotiations.
3. No competition for services means elected officials would be at the mercy of
strikers.
XV. Impasse Settlement Procedures
A. Mediation—provided for in most states
1. No authority—tries to bring parties together.
B. Fact-finding
2. Has been successful in public sector.
C. Interest Arbitration
2. Has been used in public sector.
3. Legality questioned.
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CHAPTER 6: CASE DISCUSSION
Case 6.1: Hot Cargo Contract
1. Explain how the CBA provision, which would have prevented the employer from
requiring the employees to pass picket lines established by other Locals of their union in
an authorized strike, is an illegal provision.
2. Explain why you agree or disagree with the NLRB’s ruling that because the illegal “hot
cargo” provision was in the contract, the strike for the purpose of getting the CBA signed,
which would have been a legal strike, became an illegal strike.
Disagree: It is clear that the strike here was about the CBA issues at the bargaining table
that the parties could not reach agreement on and not the hot cargo provision. Because the
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CHAPTER 6: END CASE DISCUSSION
Case Study 6.1: Surface Bargaining
Decision:
The arbitrator found that the substance of the company’s proposals and its inability or refusal to
alter any of its proposals did result in bad faith bargaining. In addition, the arbitrator found that
the company’s response to the union’s objections to the breadth of its original management rights
and zipper clauses was to submit new proposals that were even broader. Clearly, the arbitrator
found that the company’s insistence on proposals that were unusually harsh, and would result in
the employees having fewer rights than they had before the contract, was an unfair labor practice.
Questions for Discussion
1. Was the company bargaining in good faith? Explain your answer.
2. Which company proposal was the most important in determining the in good faith issue?
3. Suggest how either principled negotiations or collective bargaining by objective
techniques could be utilized in this case.
As there seemed to be no antiunion animus in this case, either procedure may have
helped. Under principled bargaining the union might have gotten the company to outline
Case Study 6.2: Impasse in Negotiations
Decision:
The Board determined that in this instance, a true impasse had been reached because it appeared
that any further negotiations were futile. The parties were simply unable to resolve the
fundamental issues and any agreements on other issues would not have resolved the impasse. The
record shows that the Company struggled with the health insurance plans, and made it clear from
the inception of the negotiations that medical insurance would be a deciding factor. It invited the
Union at the outset to participate and to get involved, providing the Union with all relevant
information, such as cost comparisons and charts showing the insurance coverage for each
The Board found that the evidence did not indicate that the Company declared the
Questions for Discussion
1. Would the Company’s willingness to share financial information on the health care plans
with the Union help the Board decide on whether there was an impasse? Explain.
2. What other options were available to the parties to break the deadlock in these
negotiations?
3. What would be the effect on the bargaining relationship between these two parties if the
Board finds that a legal impasse had occurred? If the Board finds that a legal impasse has
not occurred?
CHAPTER 6: REVIEW QUESTIONS
1. Who are the principal parties involved in the collective bargaining process? What are
their roles?
2. What is the purpose of a management rights clause? Do you agree with the reserved
rights theory, why or why not?
The purpose of the management rights clause is to answer the question of who controls
the workplace. Management rights generally include decisions governing the working
environment, including supervising the workforce, controlling production, setting work
3. Discuss how negotiators prepare for negotiations.
Preparation for negotiations involves analysis and planning. In analysis, information is
4. Why have the number of major economic strikes in the U.S. declined ?
5. What is the purpose of a union picket line? Why are they less successful today than in
past years?
Mass picketing generally takes place at least at the start of a strike to persuade union
members to join the strike and to keep strikebreakers away.
6. Generally why do both management and the union favor no-strike, no-lockout
provisions?
Most agreements in the private sector contain provisions restricting both the
union’s ability to call a strike and management’s ability to stage a lockout.
7. Describe commonly used methods for peacefully resolving a negotiation impasse,
the advantages and disadvantages of each.
Mediation involves a mediator as an unbiased third party who can present positions of the
parties in a new, and possibly conciliatory, light.
8 . How do negotiators meet the “provisional intent test”?
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9. Describe different union security provisions found in CBAs.
Closed shop. A closed shop provision required the employer to hire only union
members. To get a job, a person first had to join the union. This type of union security
has been outlawed.
Open shop. No employee is required to join or to contribute money to a labor
10. What are the pros & cons of state right-to-work laws?
Opponents contend that right-to-work legislation is an attempt to change the bargaining
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CHAPTER 6: YOU BE THE ARBITRATOR
School Bus Drivers
1. As arbitrator, what would be your award and opinion in this arbitration?
The arbitrator found that Article VII, Paragraph E gives the Board the authority to
maintain the efficiency of the District’s operations and the personnel by which such
2. Explain why the relevant provisions of the CBA as applied to the facts of this case dictate
the award.
3. What actions might the employer and/or the union have taken to avoid this conflict?
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CHAPTER 6: EXTRA CASES
Bad Faith Bargaining
Facts:
The company and the union began negotiations for a new collective bargaining
agreement (CBA) on June 17, 1993. The company’s representatives initially made a presentation
that focused on the company’s position and its importance within ConAgra and on the gap
between the wages paid by the company under the existing CBA and those paid by the company’s
competitors in Puerto Rico. The presentation included a chart showing that the company paid an
average hourly wage of $17.84 whereas its competitors paid between $5.64 and $13.76, another
company then devoted the next eight negotiating sessions to noneconomic proposals.
The parties returned to the wage proposals at their 11th bargaining session, held on
September 14, 1993. The company’s representative began by reintroducing the graphs that the
general manager had used in his presentation at the first session and soliciting the union’s
response to the individual components of the company’s economic proposals, each of which the
union rejected. The union representative then stated that the union wanted to use its own
The union’s representative acknowledged that he understood the company’s assertion:
“What you are saying is that the company is not alleging that it does not have the ability to pay.”
Subsequently, on September 20, the union sent the company a letter repeating its information
request and adding a request for the names of all the company’s clients for the past three years;
the letter included no explanation of the reasons for these requests or of their relevance to the
bargaining process.
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company had a contingency plan in place to handle a strike and added security for replacement
workers.
On November 30, the union demanded financial information from the company again.
The company provided the union with information regarding the company’s wages, its
competitors’ wages, its pension plan, and the number of temporary workers employed at the
company mills but asserted that the union was “not entitled” to any other information regarding
ConAgra companies other than the company. The parties unsuccessfully met with a mediator
several times between November 1993 and February 1994.
The ALJ in this case concluded that the company entered these negotiations with a
predetermined resolve not to budge from its initial position and that the company engaged in
“surface bargaining” and created a false impasse. She relied heavily for this conclusion on the
contents of a “contingency plan” that ConAgra sent to the company prior to the beginning of the
negotiations. In her view, the contingency plan revealed that the company prepared its bargaining
proposals knowing they would be so unacceptable as to ensure rejection by the union, leading to
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Decision:
The court rejected the NLRB’s conclusion that the company engaged in surface bargaining was
not supported by evidence. Although the Contingency Plan is certainly evidence that ConAgra
and company thought it likely that the union would resist the proposed concessions, preparing for
a possible breakdown of negotiations is quite different from intentionally causing one. Rather, the
plan simply shows that ConAgra made a judgment that the union was likely to steadfastly resist
With the Contingency Plan as a “smoking gun” removed from the mix, the evidence of
the company’s alleged “surface bargaining” is impermissibly weak. The company’s bargaining
proposals were predictably a hard sell, but not so unreasonable as to have been predictably
unacceptable. The company proposed to reduce wages and benefits significantly below their
existing levels, but not below the levels at several of the company’s competitors—including
competitors represented by the same union. The company did not categorically refuse to alter its
proposals as the negotiations continued, but in fact increased its proposed wages and benefits and
its proposed medical coverage. When these modifications failed to advance the negotiations, the
company suggested that the parties turn to mediation; the union refused to do so.
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Questions for Discussion
1. Although it is very rare for an employer to begin negotiations with a request to reduce
wages, do you think it is always a symptom of bad faith for a company to do so?
2. Would you think differently if it was the first CBA being negotiated?
3. Under the “duty to bargain in good faith” standard articulated by the Supreme Court, did
the company commit an unfair labor practice by failing to provide the union with the
requested financial information?
4. Was the company engaging in “surface bargaining?” If so, why wasn’t the union also
guilty of surface bargaining because it wouldn’t agree to the company’s wage offer?
The company did not engage in surface bargaining. While the contingency plan might be
evidence that the company thought it likely that the union would resist the proposed
concessions, preparing for a possible breakdown of negotiations is quite different from