Annotated Bibilography

T H E PROCESS OF COLLECTIVE BARGAINING

AND T H E QUESTION OF ITS OBSOLESCENCE

VERNON H. JENSEN

the process of autonomous bargaining. The parties to collective bargaining should be competent and willing to do the whole job themselves.

It must be acknowledged that in some quarters collective bargaining has suf- fered abuse or perversion, but limited failures of this type do not render collec- tive bargaining obsolete. One should not scrap an institution having vitality and great usefulness simply because there are some abuses. These need to be corrected. The fact, however, remains that there is no satisfactory substitute for collective bargaining if we want freedom of pri- vate decision making in the employment relation. It needs to be underscored that collective bargaining is private two-party decision making and that no other method of rule making and rule adminis- tration can achieve what collective bar- gaining does in a free democratic society.

Collective bargaining has always had opponents. For years it had to make its way in the face of political and economic antagonisms and legal obstacles. Never- theless, because bargaining is the essence of most transactions in our enterprise system, and because the pursuit of eco- nomic self-interest is a fundamental axiom of that system, collective bargain- ing was bound to develop and had to be accommodated.

Although collective bargaining still has its outright enemies, they are not our primary concern. It also has some un-

bargaining is not obsolete. Collective bargaining performs a

fundamental and valuable function which cannot be fulfilled as well in our society by any other means. Moreover, it performs that function more compatibly with our heritage of democracy than any other device designed to regulate em- ployment conditions.

THE CURRENT CRITICISM OE COLLECTIVE BARGAINING

It is my thesis that current comments about the inadequacies and failures of collective bargaining and criticisms that it distorts the economy are developed illogically and without factual founda- tion. By disseminating knowledge about the nature of the bargaining process and by underscoring the genuine approval given by much of industry to the fruits of its practice, the critics might be silenced and the meddlers checked. If the public adequately understands the process of collective bargaining, it will insist that collective bargaining be allowed to run its course generally, without interference from the government or from third par- ties, except on limited occasions when the parties themselves seek technical as- sistance. Even here there is danger that experts will make themselves indispens- able, thus undermining to some extent

Vernon H. Jensen is professor at the New York State School of Industrial and Labor Relations, Cornell University.—EDITOR

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COLLECTIVE BARGAINING 547

witting enemies. Among them axe those employers who think collective bargain- ing is a nuisance and who seek to capture unions or devise ways of emasculating or circumventing them.

Other unwitting enemies are those economists who find collective bargain- ing disruptive. They see it as an obstruc- tion to the proper working of the econo- imy. They viev; it as a monopolistic device 'which causes distortion of the "normal" :relationships in the economy. They find it to be a major cause of what they call "cost-push" inflation. These economists are not die-hard antagonists, for they frequently profess to support collective bargaining when properly structured. But they proceed from an unrealistic concept of competition, and their line of thinking, followed to its logical con- clusion, leads to the obliteration of col- lective bargaining.

Collective bargaining may be in dan- ger from friends as well as foes. Well- meaning persons sometimes expect too much and mistakenly make suggestions for supplementation which cannot pos- sibly produce constructive results because the process of bargaining cannot accom- modate their proposals.

Whenever there is a major sdrike, many people will say, "We ought to compel the parties to arbitrate." They argue that the costs of prolonged work stoppages could be avoided if the parties are re- quired to submit their dispute to a tribunal for adjudication. These people igiiore the alternative costs of arbitration which, although not measurable in dol- lars, are great, inasmuch as the important freedom of private decision making would be eroded.

Various assertions have recently been made that collective bargaining may be inadequate to solve the problems of the

present day. Some of these assertions come from supporters of collective bar- gaining who see major challenges posed to the free world, such as the sudden upsurge of the productive and political power of three continents, the changed character of international tradej and the acceleration of technological change. W. Willard Wirtz has said.

In a world that has shi:unk c^vemight and a national economy in wliich each part now depends on every other part and on the health of the whole] the con- tinuation of private collective bargaining as the important force in the future it has been in the past depend^ on the decision of the bargainers to exercise, or not to exercise, responsibility^ for the concerns that affect the whole economy. . . . The future of collective bfirgaining depends on whether its motive power and its procedures can be adjifsted and revised to periaadt a larger recognition and reflection of the common) national interests.... ̂

Archibald Cox, claiming tphat new conditions make the public consequences of wage and price decisions mijich vnder than in the past, has said that the govern- ment must have "an opportunity to be heard as spokesman of tlie wider public interest" while the decisions are being made. He says that "the principle must be recognized sooner or later" and "it is on its way to general acceptaijice."-' Ar- thur Goldberg has said, "It is [time that labor and management and government embark together for the new wc(rld of the economic future, and leave behind the old hostilities and inadequate ^deas and

^W. Willard Wirti, "The Future df Collective Bargaining." Address delivered at the Interna- tional Trade Fair, Chicago, 111., AugiisC 3, 1961. Daily Labor Report, No. 149, AugAst 3, 1961, p. D-2 (italics added).

^Archibald Cox, "Wages, Prices, tJovernment and Lawyers." Address before Alundni of Har- vard Law School and Graduate Scllools. Daily Labor Report, No. 115, June 13, 1962[ E-1 (italics added). i

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misconceptions that have so long delayed a needed mutual effort."^

Some critics deplore the use of eco- nomic power in collective bargaining and yearn for the arbitrament of reason. They look hopefully for signs of the latter and a reduction of the former. It has been asserted ruefully that "there has been much more of an interplay of eco- nomic power than an exercise of pure reason."* Again, Arthur Goldberg, speak- ing of collective bargaining disputes, says, "we can no longer resolve them on the old testing grounds of economic force and the exercise of raw power."^

It is urged that we work out new forms of "coordinated private and public ad- ministrative processes" and patterns of "convergent private and public decision making," such as those which have emerged in several European countries, particularly in Scandinavia. This in- volves a third-party role on government's part. Others have suggested that major bargains be made under a public spot- light.

The tasks which many of the friends of collective bargaining believe it must tackle are largely beyond its scope. There are problems aifecting labor and manage- ment relations which collective bargain- ing cannot solve. The proposal that col- lective bargaining adjust itself to larger, even world, horizons is not feasible and some of the friends of collective bar- gaining admit this when they say "what collective bargaining can do to meet the current problems remains to be answered."®

The first important question is whether

'Arthur Goldberg, Address to Printers' League Section of Priming Industries of Metropolitan New York. Daily Labor Report, No. 85, JVTay 1, 1962, p. E-I (italics added).

nVirtz, op. cit., p. D-2. "Goldberg, op. cit., p. E-1. "Wirtz, op. cit., p. D-2.

collective bargaining should be expected to solve these problems. Can the process thus be changed without the loss of its essential values? Perhaps collective bar- gaining is worth preserving as it is for what it can do effectively. I suggest that we should not covet the "pattern of con- vergent private and public decision mak- ing" prevalent in some European coun- tries. These countries have never had the same degree of freedom that has been enjoyed in this country. Eurtherniore, there is a real question whether the basic freedoms of collective bargaining can continue in the United States if the government plays an increasingly active role. The fact that certain procedures work in a small country', with its own institutional arrangements, does not mean that they would work in a large country like the United States which has a different heritage. In addition, the Scandinavian and some other European systems function successfully, not because of collective bargaining, but through the instrumentalities of labor parties. These systems entail a cost, and. the question is whether the cost would be too great for us. The basic values of t?ie process of collective bargaining as we know it, namely private decision making and pai- ticipation of employers and workers, may be lost if the process is forced to change.

We need to recognize that collective bargaining is not an instrument for re- solving all problems in the industrial re- lations universe, let alone society as a whole. It is not the instrument for solv- ing problems of the whole society. Nor should those who engage in bargaining be expected to give heed to exhortations to check themselves in their limited domain in order to conform to a policy promul- gated for the larger universe. Collective bargaining is a private approach to

COLLECTIVE BARGAINING 549

immediate and particular problems. At the same time, collective bargaining does function within certain restraints—and these may be inexorable indeed—which the bargainers can ignore only at their peril. The factors in the macrocosm may be a part of these restraints, but to be important they must have a direct impact upon the parties. Otherwise, the parties cannot be expected to take them into account.^ The bargainers are entitled to seek the maximum results obtainable within the existing effective restraints. The union, like the corporation, operates on the basis of enterprise. Both pursue economic self-interest. To gain the most for its members in a given situation is the purpose for the union's existence. But in doing so, it cannot flout the market and other restraints without suffering the consequences.

To provide a test of the criticisms of collective bargaining and a frame of reference for consideration of proposals that may come in the future, it is im- portant that the process of collective bar- gaining be fully understood.

CONDITIONS PRECEDENT TO AND POSTULATES ABOUT COLLECTIVE BARGAINING

Even though collective bargaining has gained a fair degree of acceptance as an institution of our society, the basic na- ture of the process has not always been understood. People sometimes fail to see why no other rule-making process for employment relations is of equal merit.

^ t does no good to argue that if bargainers do not give consideration to broad objectives of society, they will be forced to do so by legislation or the heavy hand of government, for the remedy would destroy freedom that is the hallmark of the system. At the same time, this does not mean that the parties at the bargaining table might not profitably join with others in a different forum to seek solutions of the larger problems.

Whether collective bargaining can function at all in a society depends upon the national milieu of institutions, laws, and the roles played by government, management, and labor. Fortunately the requisite conditions have developed in the United States, although soime of them had to be fostered ancJ it may be- come necessary consciously |to preserve them. The best way to protect collective bargaining is to make sure that we under- stand the process and its values.

BASIC POSTULATES

1. A geniiine interdepen4ence exists between the parties. Each needs the other. The bitter conflict frequently char- acterizing the establishment of collective bargaining at the outset proved in most situations to be transitory. lioth parties are dependent upon the ongoing enter- prise. Even when they ha/e disputes which lead to work stoppages, neither party considers the relationship termi- nated and tJiey strive to £ djust their differences. Both are limited by the re- quirement that the enterprise must be kept going. Otherwise there i:ould be no bargaining Oiver the fruits oE the enter- prise. The interdependence is more than pecuniary. It is also a reflect ion of ideo- logical compatibility. Bargaining takes place within the enterprise system and both parties are committed to the sup- port of the system.*

2. The parties, however, also have diverse or conflicting interests. Bargain- ing takes place over these conflicting interests. One should never fexpect com- plete union-management cooperation. One should not expect the parties to depart from their roles as adversaries. One should not expect a uWon leader

^It is doubtful if collective batgaining on a continuing basis can take place except under a condition of ideological compatibility.

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to ignore his role as an advocate, and he should not be urged to be a statesman nor to be concerned primarily with the public interest.

3. The union appeals to workers with respect to certain of their interests, such as job security and economic improve- ment. These interests attach the workers to the union. It must be noted, however, that a union is not a monolithic organiza- tion. At least three groups in it may be recognized: the hierarchy or paid staff, the dedicated or core group, and the rank and file. Each of these groups has separate needs. Other internal differences may be division between seniors and juniors, or between skilled and unskilled. Each of these factors may have to be accommodated.

Management, too, in addition to hav- ing interests which in part are diverse from those of the union, is characterized by subgioups, each of which has separate interests and needs.

4. The parties to collective bargain- ing are not completely informed of the precise nature of the position of the other. They, of course, know their own positions, provided there is internal unity. And if they are sojihisticated, they will know a great deal about each other, although their knowledge is not likely to be complete. It is obvious, however, that sophisticated bargainers may have realistic expectations of the terms of settlement which they will finally achieve. To some extent, therefore, the formali- ties of bargaining will have some char- acteristic of a ritual. This has been recognized and, in some situations, the bargaining may be little more. But to reduce all collective bargaining to a mere ritual is to distort the process and miss its importance. Even when each of the chief negotiators understands the requirements of settlement, the internal

bargaining in either the union or the company may be critical. What may appear to be ritual is a necessary allow- ance of time to work out serious internal differences.

5. Both parties operate within certain internal and external restraints. The needs and expectations of the various sections within each organization impose limits upon the freedom of the agents who do the bargaining. Bylaws and poli- cies, as well as the internal politics of the organizations, set limits for the bar- gainers.

There are, in addition, external re- straints. Broadly, these are economic, political, social, and legal. The parties must operate within the restrictions and limits imposed by society, whether in the form of laws, customs, economics, politics, or morals.

6. It must be assumed that the parties, over time, find some balance of poxver. Any situation in which one party has power arbitrarily to impose its will on the other is not a situation in which bargaining can take place. Power to paralyze is alien to the collective bar- gaining process.

If the power concept of collective bar- gaining is rejected, one will have to choose from among limited alternatives. Rejection of power as the moving force in transactions sacrifices a central feature of an enterprise society. If it is rejected there are really only two alternatives to collective bargaining, both involving the compulsion of government: (1) compul- sory arbitration or fact-finding, or (2) legislative enactment. Either of these would destroy the values which the col- lective bargaining process offers.

FACTORS INFLUENCING PRACTICE

The process of collective bargaining in any given situation^—plant, communi-

COLLECTIVE BARGAINING 551

ty, or industry—is affected by several factors, some transitional, others more permanent.

1. The history of any particular rela- tionship is often a prominent factor influencing current collective bargaining. The origins of a labor and management relationship frequently leave scars which may be long remembered. The first col- lective bargaining experience may have been preceded by a bitter organizing campaign and recognition wrung from a reluctant employer. Even in established relationships, the bitterness of a strike may linger on to affect subsequent atti- tudes. On the other hand, a strike some- times has a temperii^ effect, making the parties more condliatory. Recognition may have been granted freely by the employer.

2. The collective bargaining relation- ship is not like an ordinary contractual relationship in which parties have sought each other out. As Harry Shulman and Neil W. Chamberlain have aptly put it: The labor agreement... is made... be- tween parties who find themselves al- ready in a joint enterprise and who have little or no choice in selecting each other for the relationship. The union hardly chooses the employer; and the employer does not choose the union.^

Of course, emergence of the type of person who comes to leadership may sometimes be influenced by the conduct, program, or philosophy prevailing in one or both of the organizations. Hence, the parties may influence in some degree the kind of people they have to deal with. But it is important to keep in mind that the negotiators have to deal with the people that are on the scene, not neces- sarily with the kind they would choose if they had a choice.

°Harry Shulman and Neil W. Chamberlain, Cases on Labor Relations (Brooklyn: The Foun- dation Press, Inc., 1949), p. 4.

3. The structure of the collective bargaining relationship has an important bearing upon the procedures of collective bargaining. It is largely dictated by the type of industry, whether mass-produc- tion, fabricating, service, mining or ex- tractive industry, durable or ilon-durable goods, and so forth; whether its organiza- tions run to large units or to small ones; or whether it is a local- or a national- market industry. These factors have a direct bearing upon the negotiating ma- chinery and influence the way collective bargaining is conducted.

4. Rivalries among unions and union leaders, and competition among firms are often highly important. TThe facts of economic life in the industry and in the economy as a whole may have great influ- ence at any particular time.

IMAGES AND CONCEP]rS

There are many prevailii|ig concepts of collective bargaining, popular or aca- demic. A variety of things ^eems to be done under its name. Therp are many misconceptions about collective bargain- ing. This is not surprising, ^ost people see very little of it and whĵ t they hear about it does not seiire to develop a clear understanding.

Some people think of it as a "hold-up" where one paxty, usually the ijinion, holds a pistol at the other party's Ijead. Others see it as a sort of poker gamp w t h bluff and all that goes with it. $ome, more congenially disposed, tliink of it as a sort of horse-trading activity.^o gtill others think of it as a rational procedure where reasonable men meet arouniji the table, lay out the facts, and thus arrive at

"For a series of characterization^, see John T. Dunlop and James J. Healy, Collective Bargain- ing (Homewood, III.: Richard DI Irwin, Inc., 1953), p. 53.

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reasonable solutions to their problems. The list could be continued.

The only common thread running through each of these views is that it is a process involving people. This it cer- tainly is. Furthermore, collective bar- gaining should be carried out solely for the people directly affected by its results. It should always be remembered that it is fundamental in labor relations that the people who matter in collective bargain- ing are those who do the work of the enterprise, the production workers and the supervisors. Although the personnel, or labor relations, director of the com- pany or the national representative of the union will customarily play key roles, the bargaining is not for them or for their convenience. Hence, it would seem that the more people at the lower levels of the labor and management organiza- tions who take part or understand what is going on, the better.

It should be emphasized that the process of collective bargaining is not one in which problems are settled simply by getting the facts out on the table for reasonable, dispassionate consideration. The process cannot work in this fashion. It may not be important to get the facts on the table at all, certainly not for the purpose of study nor for the purpose of arriving at an informed judgment. If the parties are prepared before they come to the bargaining table, they will have all the necessai-y facts about the issues to be considered. One only need ask whether a company like General Motors Corpora- tion or a union like the United Automo- bile VV-'orkers ever lacks any of the neces- sary facts when it begins to bargain.

The truth is that the facts have been assembled and are used by the parties to determine their positions of settlement which neither has revealed to the other. The parties have laid their strategies and

set their tactics in accordance with the facts. For this purpose the facts are im- portant indeed. What the parties do not know is what the other is going to do as a result of its prior consideration of the facts. The bargaining process, conse- quently, is carried out for the central purpose of discovering the other's settle- ment position without prior revelation of one's own settlement position.

THE PROCESS OF COLLECTIVE BARGAINING

Hence the process of collective bar- gaining is basically a very simple matter, despite the variety of strategies and tac- tics of the parties, the lengthy arguments and prolonged meetings, and the ritual- ism by which it is sometimes enveloped.

During the process of bargaining, each party tests the position of the other and, if skillful, finds out where the other will settle short of striking or taking a strike. Arguing about the facts may be useful in this obfuscating method of communica- tion. Since the parties cannot openly tell each other in straightforward terms what their real positions of settlement are, they must find out step by step, always evaluating the other's position by reac- tions to various types of probing.

As they argue back and forth the par- ties, by observing the demeanor and sensitivities of the other and by inter- preting intentional or unintentional sig- nals, get a sense of what the serious issues are and what terms might be acceptable. This is the process of achieving an agree- ment. Compromises are reached but they come largely from a realization, that the other has the power, or is determined, to stand on a position. Furthermore, as bargaining is proceeding between the parties, it may also be going on within the respective organizations. At times.

COLLECTIVE BARGAINING 553

this may be more important than the main facing of the parties.

When each has found the position of settlement of the other and also the other's power position, both parties will commonly be near to agreement. Al- though the process of collective bargain- ing usually brings the parties together in agreement, sometimes their positions may be too far apart, or they may mis- judge the power position of the other. An overt exercise of power may then take place before compromise is reached.

The collective bargaining process works because the parties have a program and power. But collective bargaining is not a process of reasoning, nor is it pri- marily a process of economic analysis and persuasion. It does not work because the parties can argue economics. It is based on power which is compounded of all the factors impinging upon the situa- tion. It is a veritable "struggle for life," a term used so descriptively by Mr. Jus- tice Holmes in his efforts to demonstrate that most labor conduct is simply a part of the free pursuit of economic self interest," the cornerstone of an enter- prise economy.

The concept of bargaining power needs elaboration. Bargaining power is not an independent element. It is multidimen- sional and is a function of many vari- ables. There is hardly such a thing as a resei'voir of power to be called upon when needed, a "lump of power" accu- mulated for use. A union treasury is hardly tlie measure of power, although it may be one factor in it. A union or a company may have great power to do certain things in the face of some eventu- alities but, at the same time, no power to do others. The external restraints have an important bearing on power. A company's bargaining power, for ex-

"Vegelahn v. Guntner. 167 Mass. 92 (1896).

ample, may be determined largely by the roles of suppliers and customers. An employer's power position ma.y be low because he is at the mercy of everyone else. He would like to take a stribe, but his clients will not let him.

Power is related to the situation at the time; if. is related to the subject at issue and to the response of jthe oppo- nent. To win a wage increp.se of an amount equal to a prevailing pattern of settlement may be done with ^ittle or no power. The workers could not be counted upon to strike to get it, yet they get it. Or, put the other way airound, the employer might have no power to resist granting the prevailing patteriji of settle- ment, while his effectiveness to resist pay- ing more might be very greatj. A union might have little power to i effectuate bargaining over a given set oi demands, but let the employer inject a Remand to restrict certain working practices and immediately the union finds power— which it did not previously hâ ê—to call a strike. Power is a function oi; the issue, the circumstances, the time, and the cli- mate of opinion.

A skillful negotiator knows |iow far to project his demands and ho'v̂ hard to push. It does not serve his purpose to create an opposing power l̂ e cannot manage. Furthermore, he does |iot always exploit a momentary advantage, for in labor relations he must take a lomg view of the relationship. Today's events cast their shadows before the:m; today's "vic- tory" might cause, or contribute to, a defeat tomorrow. Power to exact a con- cession today might produce a aetaliation tomorrow, or next year. Such conduct might result in a mutually predatory situation which sophisticated l|argainers, interested in a continuing reljationship, do their utmost to avoid.,

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The preceding analysis of the collec- tive bargaining process in the United States sheds light on those characteristics which are common to the great variety of collective bargaining relationships, such as exorbitant demands, numerous and marathon-like sessions, talk and ar- gument often interspersed with emo- tionalism and perhaps some name- calling, a deadline, and eleventh-hour settlements, perhaps consummated in the corridor rather than at the bargaining table. It is apparent that no place is found for tliese characteristics in an "ideal" model which conceives of collec- tive bargaining as a process of rational consideration of the facts, with a reason- able solution of their differences being found by reasonable people. This "ideal" conception is a serious distortion of reality.

It should be underscored that we are viewing collective bargaining as a volun- tary process of agreement making. We are not discussing arrangements that have the form but not the substance of collec- tive bargaining. If the parties in dispute are appearing before an outsider, a third- party, as in arbitration, they will rely wholly on convincing the outsider of the justifiability of their positions. They will marshall the facts and lay them before him and perhaps try to establish the criteria for considering the facts in order to convince him of the result that is desired.

Arbitration is sometimes heralded as an alternative or substitute for collective bargaining. Whatever can be said for it under special circumstances, it is obvious that it works differently from collective bargaining. It is not collective bargain- ing, and when forced upon the parties will destroy the process. This is not en- tirely true of voluntary grievance arbi- tration which may be, in a limited

measure, a supplement to collective bar- gaining. What has, however, made volun- tary arbitration acceptable in the United States as the final step in the grievance procedure is the fact tliat most arbitrators do not conceive their roles as merely sitting in judgment. The best of the arbi- trators seek to approximate the results of collective bargaining by finding the an- swers, within the framework of the agree- ment, which conform with its terms and spirit or with the realities of the practices of the parties, producing answers which the parties can accept or live with. It may be dangerous to generalize but surely the arbitrator is not judging a debate. As often as he is making an out- right decision he is seeking a solution to a problem which will be acceptable to the parties on the basis of the established facts of their relationship. The words of the agreement may be controlling in many instances but frequently tlie prob- lem presented to the arbitrator is not related solely, or even mostly, to the words of the agreement.

STRATEGIES AND TACTICS IN COLLECTIVE BARGAINING

In their approaches, the parties have available varying ranges of strategies and tactics. The approach to collective bar- gaining is very much like the approach to games. The parties have a certain freedom to decide upon their strategies and tactics. Furtheimore, collective bar- gaining involves all tlie standard tactics which are used in. games, such as ran- domness of action or surprise, designed to keep the opponent guessing; advance analysis of the possible goals and prob- able moves of the opponent; a sense of timing of activities so as to make the most of opportunities. Yet the whole involves observance of the amenities, a sportsmanlike attitude, friendliness but

COLLECTIVE BARGAINING 555

not intimacy, conciliatoriness but not weakness, graceful retreat and regroup- ing of forces or devising new tactics.̂ ^ No less attention is given to the defensive strategies than to the strategies of offense.

A careful, wise player of any game sets his program or course of action in such a way as to minimize possible losses. In other words, he does not gamble but rather sets his strategy and adopts his tactics with one eye to possible losses as well as to gains. His defense is primarily against the former, and he does not take chances, unless desperate, on the latter.^^

Because of its critical importance in the process of coming to an agreement, it is important to di-aw special attention to the "deadline," the specific threat of a strike or lockout at a designated time if agreement is not reached. It forces the parties to come to decisions that other- wise might never be forced. The costs of a strike, or the costs of taking a strike, lead each party to reassess its position, to crystalize opinion within each organi- zation, and, perhaps, to make offers of settlement. The parties are brought more seriously to the hard core of the issues in dispute. It is doubtful that collective barg3.ining would work satisfactorily without resort to a deadline.

CONCLUSIONS

The essentials of collective bargaining may be summarized as follows. First, it is a process of finding out the settlement position of the other. In this process the question of power is ever present and

^E. W. Bakke and C. Kerr, Unions and Man- agement and the Public (New York: Harcourt, Brace and Company, 1948), p. 3S3.

•̂ "̂ In serious competition, athletic teams do not gamble except toward the end of the game when they must make quick scores in order to stave off defeat. Under such circumstances, if the gamble pays off the team may win, but, i£ the gamble does not pay off, the other team fre- quently achieves an even vrader margin of victory.

serves to bring the positions of the par- ties together at a point of agreement. Second and equally, if not more, im- portant, collective bargaining is a process by which acceptance or consent is achieved on the part of all those who must live by the terms of the agreement —a process of achieving consent.

What is done in the process of finding out the settlement position of| the other may also aid in achieving acceptance of the terms of the bargain. Indeed, if the parties are wise, they will give constant attention to the need for acceptance. The importance of this serves furt|ier to ex- plain many activities and practices that are common to negotiations, wliich seem absurd, pointless, futile, even mischiev- ous, or incomprehensible.

It is quite conceivable that i the chief representatives of the two parties in a given situation could reach agreement in relatively short order provi4ed there were no other parties to consi^ier. Even the best agreement, however. Would be inadequate in practice if th|e parties living under it were not satisfie(ji ithat the agreement was the best that jcould be achieved. The members of the union, in particular, must be left with |he assur- ance that their representative^ did the best that could be done. The siune re- quirements also exist for the Company. In the final analysis the precisel terms of the agreement are not so important as the attitude toward the agreemjBt.

Another aspect of negotiations, which frequently appears ridiculous, ii the cus- tomary show which is staged When the agreement is finally con.summp.ted. As farcical as this may seem, it Ijias great value. The late Professor Selekjman has described it as the "emotional! launch- ing" of the agreement, designed to "evoke the sentiments of cooperation &nd mu-

556 INDUSTRIAL AND LABOR RELATIONS REVIEW

tuality required for its administration."^* It should be obvious that what above

all else makes collective bargaining valuable is that it is a process for achiev- ing consent of those who will live under the agreement. This is the test of real representation and supplies a sense of participation. Furthermore, consent as- sures stability because parties who have accepted an agreement will live by its terms.

If the process of achieving consent is taken out of collective bargaining what is left is no more meritorious than some other process of rule making. The process of collective bargaining is valuable be- cause it is the instrument that best in- volves the participation of the people who count in the relationship. The free- doms inherent in collective bargaining are part of our total freedoms and to protect freedom in collective bargaining is to help protect the whole of our freedoms.

Policies suggested by friends of collec- tive bargaining that would give the government a role in the process or in determining the results are not well con- ceived. They are illogical in spite of their lofty appearance and the good intentions of the proponents. To bring the govern- ment to the bargainitig table is injurious, however well intentioned, because it prevents the parties from carrying out their responsibilities. The three-party process destroys the ability of the two- party process to work. The most that the government should do is to set the condi- tions within which collective bargaining

"B. M. Selckman, Labor Relations and Human Relation (New York: McGraw Hill, 1947), p. 38.

will be allowed to run its course without interference or assistance. To exhort the parties to collective bargaining to be statesmen and restrain themselves and take the public interest into account in their negotiations is futile. If the external restraints, including the economic re- straints, are fixed properly through the democratic process, the parties will have to respect them.

Let us not, in our anxiety, be carried away by the size and urgency of problems facing our society and crush the process of collective bargaining because it does not solve these problems. Some problems transcend the bargaining table and can- not be solved there. We should not ex- pect collective bargaining to cope with them. The parties may have to recognize these problems as re.straints and adjust their conduct accordingly, but they will be checked by them only when it is costly for them not to do so. Public policy regarding these problems must be estab- lished in a different forum. When this is done, the parties to collective bargaining will have to give consideration to it if it has an impact upon them.

Certain decisions have to be made by the legislature. In arriving at these de- cisions, unions and companies can play their democratic public roles. But they have private roles, too, and if we want to preserve collective bargaining, the two processes should be kept distinct, for they are functionally different. It is in the long-run interests of democracy that as many decisions as possible should be resolved by the people. Collective bargaining furthers that important democratic aim.