Chapter 7: Defining and Commencing Collective Bargaining and Negotiations

Collective Bargaining

Industrial Relations in Canada – 4th Edition (Mcquarrie)

The Effects of Certification

  • When a union is in place, the employer cannot negotiate one-on-one with employees
  • Both the employer and the union are compelled to commence collective bargaining
  • To ensure the union has the resources to do its work, there are union security clauses found in collective agreements and labour legislation


Examples of union security clauses

Dues Check-Off – The employer deducts union dues from the employee’s pay cheque (subject to generally permitted exceptions like the religious exemption)

The Rand Formula – Based on the principle that not all employees may wish to join the union, but all benefit from the union contract

Closed Shop or Union Shop – New employees must become union members as a condition of employment

Hiring Hall – Union matches union members with employers

Union Expulsion – If an employee is expelled from the union, then the employer may terminate employment


The Framework for Collective Bargaining

The Structure of Collective Bargaining

  • “Structure” refers to the number of locals, unions, employers, workplaces, or industries represented in a collective bargaining situation
  • The simplest and most common bargaining structure is single unit-single employer
  • Groups of employers or unions may bargain as a single entity to avoid pattern bargaining or whipsawing

The Participants in Collective Bargaining

  • There are generally two teams of negotiators: one union team and one employer team
  • What can be bargained for?
  • Most common issues are wages, benefits, hours of work, procedures for hiring and promotion, discipline and discharge, and working conditions
  • While no issue is prohibited from being negotiated, most agreements contain a management rights clause which gives the employer certain rights in organizing and directing its workforce

Some legislative guidelines

  • Collective agreements must last for minimum length of time (usually one year)
  • Agreements cannot undercut the minimum employment standards
  • Agreements cannot discriminate
  • Agreements are generally required to contain a grievance procedure (mechanism to resolve disputes)


Preparing for Commence Bargaining

Timelines for Collective Bargaining

  • One party issues a notice to bargain to the other party
  • Timelines state when bargaining must begin after the notice has been issued
  • If bargaining does not commence in a timely fashion, the union may be found to have abandoned its bargaining rights and be decertified

Setting Bargaining Priorities

  • Before starting to bargain, a team will address two questions:
  • What outcomes does the team want to achieve?
  • Which of these outcomes are the most or least important?
  • The union may poll its membership
  • Union and management teams may review past negotiations
  • Union and management teams may examine related collective agreements
  • Union and management teams will examine past grievances and their outcomes
  • Union and management teams will both look at external factors


Preparing for the Start of Bargaining

  • After developing their goals and desired outcomes, both negotiating teams develop a laundry list of proposals
  • The teams exchange initial proposals, but without indicating each issue’s priority
  • The proposals may include items that are low priority or are considered unachievable


Bargaining in Good Faith

  • Parties are legally required to bargain in good faith
  • Bad faith bargaining complaints can be made at any point in the collective bargaining process
  • In good faith bargaining
  • Parties bargain honestly
  • Parties are expected to bargain with the intention of concluding an agreement
  • If one party believes the other party is not bargaining in good faith, it can file a complaint of an unfair labour practice with the labour relations board
  • The board will use both objective and subjective criteria to evaluate the complaint
  • Bad faith complaints can be very difficult for boards to resolve


In most jurisdictions, the following have been identified as bargaining in bad faith

  • Outright refusal to bargain

Surface Bargaining - Participating in negotiations but with no intention of concluding a collective agreement

Boulwarism - Presenting an initial offer as a final offer without justification or rationale and refusing to negotiate further

Examples

  • Firing or disciplining union members or negotiators for reasons unrelated to their work, or for no reason, during the negotiation process
  • The employer bargaining directly with employees
  • Refusing to provide the rationale for a bargaining position
  • Attempting to renegotiation terms that have already been settled

Remedies for Bargaining in Bad Faith

\rightarrowRemedies are often difficult to prescribe, apart from the Board clearly stating what is and is not “bargaining in good faith”

  • If necessary, or possible, the board will repair whatever substantive damage was caused by bargaining in bad faith
  • If a first collective agreement is being negotiated, the board can impose a collective agreement

Negotiations

Conflict-of-Interest Assumption

Existence of a conflict of interest between managers and those whom they manage

Collective Bargaining vs. Individual Negotiations

  • Two party versus multilateral (lots of parties involved in collective agreement)
  • In collective issues are not all the same type
  • Collective agreement involves continues relations overtime
  • Issues may be:
  • Inherently adversarial
  • Mutual gain
  • Or both
  • One-time transaction versus ongoing relationship


IN SUMMARY

  1. Individual negotiation are bilateral in nature. Collective Bargaining is multilateral with many employees, unions, supervisors and higher-level managers
  2. Issues may be inherently adversarial, may have some potential for mutual gain, or may be a combination of both. Collective bargaining is more complex because all 3 types of issues are often negotiated at the same time
  3. In Collective bargaining, the relationship between the parties is ongoing

Sub processes of Collective Bargaining

  1. Distributive bargaining
  2. Integrative bargaining
  3. Intra-team / intra-organizational bargaining
  4. Building trust or attitudinal structuring


Distributive Bargaining

  • Two parties compete over distribution of fixed resource
  • Economic reward
  • Control over work process / work rules
  • Zero sum game
  • Some degree of conflict, haggling
  • Consistent with industrial relations system that assumes an inherent conclude of interest between management and labour
  • Not only defines a process but also can be used to describe certain collective bargaining issues
  • Distributive tactics
  • Develop a bottom line
  • Minimum position necessary to avoid strike / lockout


Integrative Bargaining

  • Potential for a solution that produces a mutual gain
  • Win-win bargaining
  • Principled negotiations
  • Interest-based bargaining
  • Integrative bargaining tactics
  • Focus on real cases
  • Share information
  • Many voices
  • Array of solutions


Intra-Team (Intra- Organizational) Bargaining

  • Bargaining within teams during the collective bargaining process
  • More time is spent negotiating within teams or organizations
  • Individual team members represent interests
  • Women
  • Pensioners
  • Shift workers
  • Intra-team tactics
  • Team caucus

Attitudinal Structuring

Difficult process of building the mutual respect and trust necessary for an enduring and positive collective bargaining relationship

  • Difficult process
  • Building mutual respect and trust
  • Necessary for an enduring and positive bargaining relationship
  • Building trust tactics
  • Away-from-the-table meetings


Strategies and Tactics of the Bargaining Sub processes

  1. Distributive Bargaining Tactics
  2. Inflate their position for they have issues that can be traded off later
  3. Get what you want, you have to ask for more than your bottom-line
  4. Keep its true position a secret
  5. Each party has one spokesperson that helps not reveal secrets
  6. Integrative Bargaining Tactics
  7. Less likely to inflate issues
  8. Focus on real classes and clearly define remedies in discussions about the health and safety of their members
  9. Information sharing can be a rest of commitment to a joint problem-solving approach
  10. Parties will relax the strict distributive requirement of a single spokes person
  11. Intra team tactics
  12. Use the team caucus to resolve differences over which issues drop off the table and which to keep
  13. Negotiators must take into account the mandates that there team has been given
  14. Building Trust Tactics
  15. Meetings between high-level management and labour officials during the term of the agreement and if they are used creatively to bring forward issues of common concern, using the problem-solving approach, then these away-from-the table meetings can help to build trust


Collective Bargaining Model

Economic explanation of collective bargaining outcomes

Contract Zone

Exists in each side’s bottom line overlaps, in other words, to avoid a strike or lockout, management will offer more and the union will accept less than the point where their negotiated positions intersect

  • Bottom lines overlap
  • 95% of cases settle

Same Expectations

Divergent Expectations

Contract Zone

  • Point where negotiation positions intersect
  • To avoid a strike or lockout
  • Management will offer more
  • Union will accept less

Triangle of Pressure - Deadline may be necessary to pressure the parties into a settlement

  • Union-Employer Pressures
  • Pressures on the firm
  • Because of the potential loss of sales, revenue, profits, and market share; decreased stock prices and bad publicity
  • Relieve some of the pressure by stockpiling or building up inventory
  • Depends on the level of competition in the market for the firm’s goods or services
  • Pressures on the union
  • Long strike with no gains may have a major impact on the strike fund, future organizing, and even the continued existence of the union
  • When there are changes in economic conditions, unions must deal with changing member expectations in bargaining
  • If a strike is to be avoided, the contact must be ratified by these same members
  • Pressures on union members
  • Employer-Union Member/Employee Pressures
  • Those responsible for production will do everything possible to maintain production and sales during a strike
  • Plan to use managers and supervisors to sustain production and hire temporary replacement employees
  • Union-Union Member Pressures
  • Powerful tensions between the union leadership and its members
  • Hold information meetings to explain the issues, use third party procedures or work at lowering expectations
  • Union leaders must lead, but they also have to get reelected if they wish to remain in office, so they have to be sensitive to the condition and mood of their members


Bargaining Step by Step (PAGE 210-211)

  1. Management and union prepare for bargaining
  2. Union or management serves notice to bargain
  3. Parties meet
  4. Each party communicates its priorities
  5. Momentum builds for a settlement
  6. Contract zone is reached
  7. Settlement or impasse?
  8. Ratification


Interest-Based Bargaining (IBB)

A cooperative form of bargaining where the parties forces more on the interests of the parties and not the exaggerated positions

  • Cooperative
  • Focus on interests not positions
  • 3 Steps
  1. Identify the problem
  2. Search for alternative solutions
  3. Systematically compare alternatives

Modern day IBB is based on 4 assumptions

  1. Both labour and management can win
  2. Each can assist the other to win
  3. Open discussions expand area of mutual interest
  4. Decision making is based more on standards for evaluations options than on power

Main elements include \rightarrow

  • Focus on issues, not personalities
  • Problem-solving approach
  • Free exchange of information
  • An emphasis on interests, not positions
  • The creation of options to satisfy mutual and separate interests
  • An evaluation of options with objective standards

IBB Challenges

  • Involves mixed-issue bargaining
  • Negative bargaining history may impact
  • Requires complete certainty other side will cooperate
  • Over time its effect can diminish

Does IBB Work?

  • Can work
  • In a crisis
  • In exceptionally bad relationship
  • In absence of monetary conflicts of interest

Magna Deal

  • Departs from Wagner Act model
  • Gives up right to strike
  • Non adversarial organizing
  • Cooperative conflict resolution at work
  • All contract disputes to final offer arbitration

Summary

  • Key differences
  • Distributive vs integrative bargaining
  • Intra-team bargaining
  • Diversity of interests on each team
  • Building trust is most difficult process
  • Both sides face pressures in relationships


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