Chapter 6 Homework Questions For Discussion The City Had Suggested

Unlock access to all the studying documents.

View Full Document

125

Negotiating Procedures

Facts:

The company operated a wholesale and retail financing of motor vehicles in San Juan, Puerto

Rico. The union organized 18 field representatives in the San Juan branch in the fall and in

November was certified as the employees’ bargaining representative. Collective bargaining began

on December 12. The negotiations lasted for 18 months but were characterized by long delays

between sessions when the company attempted to eliminate the union by withholding merit

increases and soliciting letters from employees to repudiate the union. At the beginning of the

negotiating sessions in December a year later, the company scheduled only three half-days for

bargaining and advised the union that if it wanted to continue to negotiate, it could go to the home

office in New York.

In February, the union filed an unfair labor practice charge for refusal to bargain. The

company refused to meet with the union again until the charge was withdrawn. The union

withdrew the charge, and the company agreed to meet in March for two more half-days. In April,

two half-day sessions were held; in May, three half-days; in June, one day; and then negotiations

broke down. The union again filed charges against the company for refusal to bargain in good

faith.

Decision:

The National Labor Relations Board found that the company had refused to bargain in good faith.

The Board’s rationale included the following: allowing only 10 half-days for bargaining during a

6-month period, attempting to continue negotiations hundreds of miles from the plant, and

attempting to circumvent the collective bargaining unit and deal directly with employees.2

Questions for Discussion

1. Could “principled negotiation” and “collective bargaining by objective” techniques have

been used to remedy this situation?

2. The dissenting judge in this case held the union responsible for the negotiating dates

because it failed to pressure the company for more available negotiating times and places.

2 Adapted from General Motors Acceptance Corp., 79 LRRM 1663 (1972).

126

Economic Strikes

Facts:

The company is a manufacturer of mobile homes with approximately 110 employees. As a result

of the breakdown in collective bargaining negotiations between the company and the union, about

half of the employees went on strike. The company cut back its production and curtailed its

orders for raw materials. The strike ended, and a contract was signed. The union requested

reinstatement of its strikers. The company explained that it could not reinstate the strikers because

of the curtailment of production caused by the strike, but that it intended to increase production to

Decision:

The Supreme Court found that the company committed an unfair labor practice by not hiring the

six striking employees when jobs became available. The court found no merit to the fact that

there were no jobs on the first date the employees applied. The court stated that the basic right to

jobs cannot depend on job availability at the moment when applications are filed because the

Questions for Discussion

1. The court would accept legitimate and substantial business justification for refusing to

reinstate striking employees. Can you give some examples the court might accept?

2. The court did not require that it be proved the company intended to adversely affect the

striking employee’s rights. Should such intent be required before finding an unfair labor

practice in this situation?

Negotiating

Facts:

The company is an interstate trucking company with 98 percent of the stock owned by its

president or his relatives. The president makes almost all of the company’s decisions. The union

received a bargaining order from the NLRB in October 1972, and bargaining began in November

1972. Between November 1972 and December 30, 1974, when negotiations ceased, the parties

met 25 times. The principal union negotiator was its president, who attended all the negotiating

sessions but the last. The principal management negotiator was a vice president of operations,

who attended all the meetings accompanied by two lawyers. The company president attended the

initial meeting and the last three.

At the first meeting when the union negotiator advised the company that any negotiated

Negotiations Status Sheet

Name of Section Status Date

Wages Hold Discussed 12-11-73

Holidays Hold Discussed 12-11-73

Vacation Hold Discussed 12-11-73

Seniority OK 1-10-74

Federal and state regulations OK 12-11-73

Employee examinations OK 2-17-74

Maintenance of standards OK 1-11-74

Existing operating practice See Preamble 2-14-74

Hiring of personnel OK 1-10-74

Note: As of 2-21-74 the following articles or topics are either being held for economic

reasons or have not been specifically discussed during negotiations.

1. Wages

2. Holidays

Although the president was not directly involved in the negotiations, in late April he

reviewed the negotiations file kept in his office and began to rewrite portions of the draft

agreement. He arrived at a negotiation session and proposed his draft, which caused the union

negotiator to object and accuse him of bad-faith bargaining. The president asserted he was acting

The union charged the company with a violation of the duty to bargain in good faith. The

company’s position was as follows:

1. The president lawfully reserved the right of ratification at the first meeting.

The union’s position was as follows:

1. The negotiations prior to the president’s involvement had resulted in tentative

agreements on numerous noneconomic issues. These agreements had been

2. Although the individual proposals had been only tentatively agreed to, major

Decision:

The court agreed with the union.

Questions for Discussion

1. Would you rule for the union or the company? Why?

2. Could the union have used either principled negotiations or collective bargaining by

objectives techniques to resolve this disagreement? Explain your answer.

130

3. Could establishing more specific ground rules have helped negotiations in this case?

Explain your answer.

4. If the company president intended to stall the negotiations, what, if anything, could the

union negotiator have done to prevent it?

Bargaining Subjects

Facts:

Union submitted its contract proposals at the first bargaining session to the company. The

proposal contained contract provisions commonly found in collective bargaining agreements

covering wages, hours, promotions, vacations, and a clause establishing a procedure for settling

grievances arising under a contract, with an appeal to management and an ultimate resort to an

arbitrator.

The company objected to the provision calling for unlimited arbitration, and proposed

instead a “management functions” clause listing matters such as promotion, discipline, and work

scheduling as the responsibility of management and excluding those matters from arbitration. The

union would not agree to such a clause and the issue was bypassed while negotiations on other

subjects continued.

Decision:

The court overruled the NLRB. It found that first and most importantly the company had not

violated its duty to bargain by responding to a union proposal with a counter proposal. The Board

is not to sit in judgment upon the substance of that counter proposal. Second, the court rejected

the Board’s finding that the company’s bargaining for a management functions clause was a per

Dissent:

Not all of the judges agreed, however. They believed that in this case the result of the

presentation of the management functions clause was to remove the mandatory subjects covered

from the bargaining table, and that was, in fact, a refusal to bargain on those subjects.

Questions for Discussion

1. This case would seem to hold that “agreeing to disagree” on a mandatory bargaining

subject does not violate the duty to bargain. Does it violate the spirit of collective

bargaining as a process?

2. Could this case have been avoided by better ground rules at the negotiating table? Give

examples.

3. Do you think the court would have decided this case differently if the parties had never

reached agreement?

Good-Faith Bargaining

Facts:

The union was certified as the exclusive bargaining representative on July 20. On August 1, the

union negotiator requested a bargaining conference. The company president informed the union

representative that a bargaining session could not be held prior to Labor Day, so the initial

meeting was set for September 15.

On August 9, the union had requested that it be allowed to post certain noncontroversial

notices on company bulletin boards. The request was denied with the company saying that the

issue should be discussed at the bargaining table. The union also repeatedly requested wage and

hour information that was not supplied until October.

At the initial bargaining session, the company would not entertain discussion of possible

areas of agreement and disagreement but insisted upon a list of contract proposals from the union

that the union supplied.

The next five bargaining sessions resulted in the following disposition of the union

proposals:

Union Request

Company Response

1. Substantial wage increase

1. 10¢ per hour wage increase with the condition,

if accepted, no further negotiations on wages

2. Would discuss 10¢ per hour wage increase in

2. Rejected

132

4. Grievance procedure with arbitration

4. Opposed on principle to arbitration; grievance

procedure too cumbersome.

5. Check-off provision

5. Opposed as not a proper subject for collective

bargaining

6. Six paid holidays

6. Rejected, noted year-end bonus practice but

refused to put bonus in contract

7. Seniority provision insurance

7. Response was seniority provision from a 10–

8. Some form of pension and insurance

8. Rejected, said would propose company position

but never did

9. Minor issues

a. Bulletin board space

a. Would not allow; considered posting

on gate but never reached agreement

representative at grievance procedures

c. Proposed a 40-hour workweek with

time and one-half pay on Saturday

c. Rejected this and modified proposal

e. Daily record of piecework for each

employee

e. Rejected, said was impossible to do

although other companies did so.

b. Incorporate language of a statutory

obligation to allow union

b. Rejected

By the end of these sessions, both parties believed that an impasse had been reached.

Still, they continued to meet. On November 10, both parties submitted final proposed contracts.

The union contract was complete except for a wage clause. The company contract contained only

a recognition clause that specifically noted that individual employees could pursue grievances,

Decision:

The Supreme Court upheld the NLRB, noting that the union’s bargaining efforts were marked by

a considerable flexibility but that the company refused major proposals on principle and minor

proposals as a matter of bargaining technique. On the totality of the conduct of the company, the

Court found a lack of good faith. The Court recognized that the NLRB must infer that lack of

good faith by the company from circumstantial evidence.5

Questions for Discussion

3. Union security provisions

3. Opposed on principle

133

1. How could the union have used either the principled negotiations or the collective

bargaining by objectives techniques in this case to move the company closer to an

agreement?

2. The company had previously negotiated contracts with a different union. Should the

Court have considered that in deciding that the company now showed a lack of good

faith?

3. Could the company’s actions be defended as a bargaining technique?

4. In your opinion, why did the company adopt the bargaining strategy revealed in this

case?

Binding Arbitration

Facts:

The City of Richfield and Local 1215 pursuant to the state’s Public Employment Labor Relations

Act engaged in collective bargaining negotiations in an attempt to reach an agreement on the

terms of a new contract. When negotiations failed to resolve all the issues in dispute, the union

petitioned the Director of the Bureau of Mediation Services for binding arbitration. The Director

certified that an impasse had been reached and nine issues in question were submitted to the

three-member arbitration panel. The panel issued its award and the city sued on the issue that the

Public Employment Labor Relations Act unconstitutionally delegated legislative authority. The

city contended that the procedures under the Act allowing for binding arbitration were

unconstitutional because they impermissibly delegated legislative authority.

Decision:

The court found that although purely legislative power cannot be delegated, if a law embodies a

reasonably clear policy or standard to guide and control administrative officers then some

delegation of power is constitutional. In this instance, the court found that the policy of the Act in

question was an adequate standard to guide the arbitrators; the policy being to promote an orderly

and constructive relationship between the public employers and their employees subject to the

paramount right of the citizens to keep inviolate the guarantees of their health, education, safety,

and welfare.

134

Questions for Discussion

1. The city had suggested that instead of binding arbitration, an advisory arbitration system

be invoked which would require that the arbitrator’s award be returned to the council for

final action. Would this be a better system?

2. Certainly, the standards cited by the court give the arbitrator wide latitude in deciding

specific contract issues. Could the standards be any more rigid and still give the arbitrator

the flexibility necessary to affect the legislative purpose of the Act, that is, orderly and

constructive relationship between the public employers and their employees?

Chapter 6: Additional Review Questions

1. List some guidelines negotiators can use in aiding the negotiation process.

• Set clear objectives.

• Don’t hurry.

• When in doubt, caucus.

• Examine why other party acts as they do.

• Respect “face saving” tactics.

• Ascertain the real interest of parties.

• Listen.

2. Distinguish among mandatory, permissive, and illegal bargaining subjects.

Mandatory subjects are those issues actually listed in the act: rates of pay, wages, hours

of employment, and other conditions of employment. Wages include overtime pay, paid

3. How do the parties determine the issues that should or may arise at the bargaining table?

4. What types of strikes could result in employees being legally fired?

5. Describe commonly used methods for resolving a negotiation impasse.

Mediation involves a mediator as an unbiased third party who can present positions of the

parties in a new, and possibly conciliatory, light.

6. Explain the significance of the proposed change to the NLRA that would prohibit an

employer from replacing striking workers with permanent replacements.

Although the employer has been able to replace striking workers in an economic strike

7. Why are negotiations in the public sector different from negotiations in the private

sector?

8. Explain how the inability of public employees to strike affects the bargaining process.

Because public employees are unable to strike they have less ability to pressure the

employer when an impasse is reached. The public employees, therefore, attempts to apply

137

CHAPTER 6: EXERCISE AND EXERCISE GUIDANCE

1. Develop Your Own Negotiating Skills!

Purpose:

The purposes of this exercise are to have students recognize potential negotiation situations as

they occur in “real life;” require them to become familiar with the 10 tactics presented; require

them to practice using some of these 10 tactics; and by familiarity, increase students’ likelihood

of using one or more of these tactics in their own lives.

One practical suggestion based on the author’s own classroom experience is that the

Task:

Make a copy of this list of 10 tactics and carry it with you for one week. As you encounter a

potential negotiation situation, refer to the list and try a tactic. Record a description of the

situation, the tactic selected, and the outcome. After the week is over, your instructor will lead a

class discussion of the exercise and collect the records of the incidents.

Everyone is a negotiator. However, most people do not think of themselves as negotiators,

and unfortunately do not often recognize a negotiation situation when confronted with one. Thus,

the outcome is less than what they could have achieved had they bargained with the other party.

Everyone who has bought a car, home, or piece of furniture; discussed issues such as chores and

1. Power and leverage. Every negotiation is a power struggle, and the side that is perceived

(real or not) to have the power advantage has leverage over the other side. But leverage

2. Ego. Ego is often the core of a dispute and is a driving force during many negotiations: It

is “my proposal,” “I am the parent,” “You are a jerk.” Everyone wants to win, and no one

3. Being right. In negotiations, what is “right” is whatever is agreed on. There is no exact

right, fair, or honest price except the one that is negotiated. The right price for a used car

is exactly the price the two parties negotiate. Prices quoted in the NADA Bluebook,

4. Facts. You need to be prepared with as much relevant, persuasive information as

possible. Facts alone may not determine the exact outcome, but they certainly influence

it. Today there is an enormous amount of information available on the Internet on the

5. BATNA and principles. Always, always know your principles—exactly what you must

get on a deal and what cannot be compromised. What will cause you to walk away from

the negotiations? The point at which you will walk away is your BATNA—Best

6. Don’t debate the “shape of the table.” At the end of the Vietnam War, the parties at the

Paris Peace Talks argued for months over the shape of the negotiating table. Today when

negotiators waste time debating the place, time, length of sessions, and so on, it is said

that they are debating the “shape of the table.” In reality, they are delaying the

7. List issues and classify as compatible, exchange, distributive. A good first step is for

both parties to list all the issues to be decided on and their positions on each. Do not

assume that you have opposing goals on all issues. Instead, together classify each as (1)

compatible—your goals are similar or almost identical, so that a “common ground” can

be found quickly and the issue resolved; (2) exchange—you can easily exchange one

issue for another, so that each side gains one goal; and (3) distributive—issues, usually

ones involving price or another economic variable in which the gains must be

Issue

Type

Settlement

1. Annual travel budget

Exchange

Applicant traded her goal to receive a signing

bonus (#3).

3. Signing bonus

Exchange

Human resources director traded to get his

4. Travel days per month

Distributive

A key issue. Both agreed to a 12-day/month

140

6. Primary territory

Compatible

Both wanted Phoenix, Arizona, to be their

primary territory of the six available.

7. Annual salary

Distributive

The last issue to be resolved. Having settled

8. Benefit plan

Exchange

human resources director gave her the

enhanced plan for no moving expenses (#5).

The firm offered three levels of plans, and the

8. Repeat back/empathize. As a means of making progress and setting a positive tone, use

the classic tactic of repeating back the point made by the other side (not agreeing to it)

and emphasizing that you understand their point of view and concerns. At the same time,

you should never accuse the other side of a negative motive or misrepresenting the

9. Use “what–ifs.” Negotiators often like to float an outrageous proposal to test the water—

called “what–ifs.” A what-if does not need to be logical. It may be used to find an outer

limit by the other party and cause them to think from a new starting point. On rare

occasions, a “lowball” what–if might get you a great deal.

Example:Anne is looking for a retirement home in her old neighborhood and

loves one of the houses she went through in December. But it is listed at

10. Ask, “Can you do any better?” It costs nothing to ask—it is simple and direct and often

gets a positive response because the other party is prepared to give a little more. Also, the

“better” is not limited to price. Terms, color, delivery date, and warranties can be

included in the deal. Remember that hotels, airlines, retail shops, restaurants, banks, and

5. Moving expenses

Exchange

Applicant traded her goal for the enhanced

benefit plan.

2. Surface Bargaining at St. Matthew’s Hospital

Purpose:

To help students understand the bargaining process.

Task:

The union became the certified bargaining representative for the employees at St. Matthew’s

Hospital. The company was contacted by the union on December 2, 1990. The union stated that it

would like to begin contract negotiations as soon as possible. The representatives for the

company responded to the union’s request, stating that they would not be ready to negotiate for

On the union’s wage proposal, the company responded with an outright no. The chief

negotiator said there was no way the company could come close to accepting the proposal. The

1. Has the employer committed an unfair labor practice?

142

2. What could they have done differently to avoid the strike?