Maintaining the Upper Hand: Winning Strategies for Labor Negotiations

By Mark Floyd

Wednesday, September 4, 2013

How to Participate
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We encourage you to ask questions at any time using the dialog box on your screen. Questions are anonymous and will be answered in the order received during the last 10 minutes of the webinar. We will answer questions submitted by email for 24 hours following the webinar. support@avantresources.com The material and forms provided are intended as general information and is not a substitute for legal or other professional advice.

Collective Bargaining
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Overview of the Bargaining Process How to Prepare For Negotiations Preparing For The Potential Strike Implications of Contract Expiration Impasse

Setting the Stage

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Its all about leverage The union's ultimate leverage is the threat of a strike A company goal is to minimize that leverage through preparation and careful consideration as to its willingness to withstand a strike

Company Considerations
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Can the company continue to supply or service its customers during a strike? Has the company ever withstood a strike in the past? Can competitors chip away at the company's market share? Will the company's reputation be affected by the strike?

Union Considerations
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How many union members work in the facility? Can they afford to be out of work? Is the union strike fund substantial? Is alternative work available for the strikers? Can the employer find replacements? Does the state where the facility is located provide unemployment compensation for strikers?

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Studying the Union

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Name and address of union(s) involved-international, local and district affiliates. Names and titles of officers. Constitution(s) and bylaws. Financial status of the union. Salaries and allowances of union officers and staff. Strike history.

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Studying the Union

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Record of contract administration. Availability of strike funds. Unfair labor practice history. Record of other civil or criminal violations by the union and staff. Other contracts entered into by the union. Details of union benefit plans, if any.

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Setting the Stage

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Initial Contract or Longer Term Relationship Drafting the Proposal

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Develop an understanding of the Work Flow Company Policies Anticipated Issues: Overtime, Subcontracting, Use of Temps, or Part-Time Employees, Grievances, Election Promises Sample provisions

Meeting Arrangements
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Reasonable Time and Places

The Negotiation Process

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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."

Factors Indicating Bad Faith

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"Surface Bargaining" Concessions. Proposals and Demands Dilatory Tactics Inadequate Negotiators Conditions on Bargaining

Factors Indicating Bad Faith

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Unilateral Changes Direct Dealing Failing to Meet at Reasonable Times Insisting on Permissive Subjects Regressive Bargaining

Bargaining Subjects Under the NLRA

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Mandatory Subjects of Bargaining Permissive Subjects of Bargaining Illegal Subjects of Bargaining The "It Depends" Category

The Negotiation Process

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The Tricks of the Trade Responding to Requests for Information Negotiating to Impasse Communicating with Employees The Effect of an Expired Labor Agreement

Tricks of the Trade

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Control the negotiations by discussing the subject which you wish to discuss and work from your own proposals. Always make your own proposals. Take good notes. All of the employer's proposals are important. Always trade money for language.

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Tricks of the Trade

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Do not agree to language until it is in the form in which it shall exist in the agreement. Do not restate the law or incorporate the law by reference into the contract. Agree to as little language in the contract as possible. Type and print your own contract. Make the concessions come out of the union's mouth.

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Responding to Information Requests

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Confidentiality. Burdensomeness and Expense Relevancy. Availability. Discovery Purposes Only

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.

Factors to Consider
Whether a bargaining impasse exists is a matter of judgment. 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).

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 of benefit.

Communicating with Employees

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Information on the status of negotiations; Explanations of positions previously advanced by the company to the union; and Criticism of bargaining strategy and certain related tactics of the union leadership, which were the asserted reasons for the inability to reach agreement.

The Methods of Employee Communication

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Letters Mailed Directly to Employees Large and Small Group Meetings Bulletin Board Postings Regarding Contract Negotiations

The Effect of an Expired Labor Agreement

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[T]he collective bargaining agreement survives its expiration date for purposes of marking the status quo as to wages and working conditions. The employer is required to maintain that status quo following 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).

Possible Exceptions
Grievance And Arbitration Clauses No-Strike/No-Lockout Clauses

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After the Deal is Done

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Supervisory Training Living by the Written Word

Collective Bargaining

Questions?