The Negotiating Process
In determining whether the parties
are “bargaining in good faith”, the
NLRB relies on it’s totality-ofconduct concept rather than looking
at individual actions.
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Bargaining in Good Faith
Among the factors the Board
examines as part of this totality of
conduct are:



Willingness to meet and confer at reasonable
times, and places.
Reasonable authority to negotiate.
Rejection of the other side’s proposals
without extension of counterproposal.
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Bargaining in Good Faith


Open mind to consider proposals.
Recognition of union’s exclusive right to
bargain - no direct dealing.

Dilatory tactics.

Surface bargaining.

Take it or leave it offers.

Requirement to provide relevant information.

Poverty pleas.

Anti-union animus.
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Bargaining in Good Faith
Legal Categories of Bargaining Issues

Mandatory
“You must talk to me”

Permissive
“Please talk to me”

Prohibited
“I can’t talk to you”
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The “Bargaining Procedures”
Before bargaining over substance
can begin, the parties must agree on
a mutually acceptable bargaining
procedure.
The following can be classified as
procedural issues:
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Bargaining Location
One of three places:

Yours, Theirs, or Somewhere else.

Free from disruption, and fully furnished
with chairs, tables, blackboard, chalk,
paper, water, coffee, and good lighting.

Accessible at all hours, close to food and
refreshments, and adjoining caucus
rooms for both sides.
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Agenda Sequence
The typical approach for the parties is to
negotiate over minor issues first.
The rational being that it is difficult to
resolve minor issues if they are left for
the later stages of negotiations.
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Authority to Make Firm
Commitments
Under the law (NLRA), the negotiators on
both sides must have the authority to
make firm commitments on behalf of the
principles.
This notwithstanding, the authority of
negotiators varies considerably, and it is
advisable to define the authority of both
sides at the outset, reducing potential
misinterpretations later.
8
Working Drafts
In some bargaining situations, the parties
exchange draft agreements.
This presents a procedural question as to
whether to negotiate from the union draft,
the employer draft, or the existing
agreement.
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Procedures During Negotiations
The parties should establish a schedule
and duration of negotiating sessions.
Time out for caucuses should be
arranged, and some understanding
needs to be established with regard to
recordkeeping.
Some understanding should also be
reached with regard to confidentiality.
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Stages of the Negotiating Process
The Opening
Characterized by the first meeting or set
of meetings.
Typically the union presents all of its
demands.
The next meeting or set of meetings is
where management presents it own
initial response to the union and submits
its own demands.
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Stages of the Negotiating Process
The Opening
It is in the opening that the limits of any
potential collective bargaining outcome
are set by the parties.
It is considered a faux pas in the
negotiation arena to bring up completely
new issues after this point in the process.
The number of proposals typically
submitted by the union at the bargaining
table can vary from a few to a few
hundred.
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Stages of the Negotiating Process
The Settling-In
Characterized by a full discussion of each
issue.
Detailed analysis of industry wage trends,
local wage trend, and national price
trends as well as any other supportive
materials.
During this stage of negotiation, both
sides try to resolve issues on which
agreement can be reached easily.
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Stages of the Negotiating Process
The Consolidation
Characterized by a fuller elaboration of
positions by each side.
At this point we begin to see movement
on some issues as each side begins to
offer concessions to the other side.
We begin to see tradeoffs of small items,
and the being of the discussion of the
economic package (wages and benefits).
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Stages of the Negotiating Process
The Consolidation
By the conclusion of this stage, most of
the less important items or the more
easily settled issues are taken-off the
bargaining table either through
agreement or abandonment.
At this point each side has a general
feeling about the opposition’s true
priorities.
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Stages of the Negotiating Process
The Finalization
There are only a few items left on the
table and they are important to both
sides.
Generally, the finalization stage is
accompanied by a change from what we
might call more normal bargaining
environment to one of crisis bargaining.
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Stages of the Negotiating Process
The Finalization
Crisis bargaining is characterized as
much as anything by the behavior of the
parties. That is, they recognize that there
is a fast approaching time limit, so they
bargain much more intensely, meeting on
a daily basis and for longer periods of
time.
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Basic Negotiation Concepts and
Techniques
Every negotiating team should
formulate a total plan of action,
and
Attempt to satisfy the need of it
own constituencies.
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Mutual Gains(Integrative)Bargaining
It has been suggested that
Compromise means a giving up of
something,
whereas
Integration implies an attempt to
satisfy the needs of both sides.
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Mutual Gains(Integrative)Bargaining
The philosophy of integrative
bargaining stresses a participate
working relationship between
labor and management and a joint
problem-solving approach to
collective bargaining.
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Win-Win(Principled)Bargaining
Another form of MGB through
which objective sources are
sought to settle disagreements on
mutually agreeable terms without
the necessity of one side’s losing
face.
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Win-Win(Principled)Bargaining
Negotiations are viewed as
problem solving sessions. The
emphasis in bargaining is on each
party’s interests rather than their
positions.
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Win-Win(Principled)Bargaining
There are no ideal bargaining
models or processes that would be
appropriate for all bargaining
parties.
There is no paradigms that would
work well in all organizations.
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Win-Win(Principled)Bargaining
In the final analysis, the parties
must be eclectic in deciding which
bargaining approach would work
best in their particular
circumstances.
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