Labor Relations week 3 discussion
Chapter 8
Impasse, Strikes, and Dispute Resolution
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Learning Objectives
Explore options for resolving bargaining disputes and impasses.
Understand different types of strikes and lockouts, their roles in labor relations, and their legal restrictions in the private and public sectors.
Discuss the controversies surrounding the use of strike replacements.
Identify other types of pressure tactics beyond strikes and lockouts and why they are being used more frequently than in the past.
Compare the major third-party dispute resolution mechanisms and their strengths and weaknesses.
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Introduction 1
In the bargaining process, negotiators do not have to reach an agreement
The National Labor Relations Act (N L R A) states that the good faith bargaining obligation “does not compel either party to agree to a proposal or require the making of a concession”.
A bargaining impasse can occur when labor and management negotiators fail to agree on a mutually acceptable terms and conditions of employment
Bargaining impasses are rare.
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Introduction 2
Bargaining disputes or impasses and methods for their resolution are central topics in labor relations
Possibility of a bargaining dispute underlies all labor negotiations because of the threat affects power.
Bargaining in good faith to an impasse fulfills each side’s legal bargaining obligation.
Major strikes can have devastating consequences for workers, employers, and the public.
Some dispute resolution methods can be used before an impasse is reached and others are designed to prevent impasses.
The method used to resolve bargaining disputes is a defining feature of different labor relations systems or laws.
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Introduction 3
Categories of disputes in labor relations
Interest disputes: Pertain to conflicts of interest.
Higher wages versus lower labor costs.
Seniority-based layoffs versus merit-based layoffs.
Broad union input into managerial issues versus strict management rights to conduct business without interference.
(this chapter).
Rights disputes: Disagreements over whether someone’s rights have been violated.
Conflicts over the application and interpretation of a contract (grievances).
(next chapter).
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Strikes and Lockouts 1
A strike occurs when employees refuse to work until an employer changes position on one or more issues
An expression of protest and dissatisfaction.
Frequently intended to pressure an employer.
By withholding their labor:
Strikers seek to increase the employer’s cost of disagreement by depriving the employer of profits or in the public sector of its ability to satisfy the demands of taxpayers and voters.
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Types of Strikes and Lockouts 1
Economic strike: Employees might strike to win better wages, benefits, and work rules
Stem from bargaining impasses over mandatory bargaining items when union contracts are being negotiated.
Lockout: An employer-initiated rather than worker-initiated work stoppage during a bargaining impasse
An employer tells the workers not to return until they agree to the employer’s terms.
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Types of Strikes and Lockouts 2
Unfair labor strike: A strike to protest an employer’s unfair labor practice.
Recognition strike - When employees are striking to force an employer to recognize and bargain with their union.
Sympathy strike - Striking to support other workers who are on strike.
Wildcat strikes - Most union contracts contain a no-strike clause prohibiting work stoppages over grievances during the life of the contract.
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Types of Strikes and Lockouts 3
Jurisdictional strike - When a union strikes to force an employer to assign certain work to its members
National emergency strikes
The Railway Labor Act empowers the president of the United States to create a presidential emergency board if a strike would “threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service”.
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The Legal Treatment of Strikes
The legal treatment of strikes depends on the type of strike
Economic strikes and unfair labor practice strikes are protected by Section 7 of the N L R A.
Strikes over grievances are considered protected activity under the N L R A, unless there is a no-strike clause.
Employees who participate in wildcat strikes can often be disciplined.
Jurisdictional strikes are prohibited by the N L R A, so unions can be ordered to cease and desist from such strikes.
Strikes by federal government workers and many other public sector workers are prohibited.
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Picket Lines 1
A key aspect of a strike is a picket line
Strikers, their leaders, and supporters march outside struck employer’s locations to publicize their dispute.
Convince the public not to patronize the business and workers not to cross the picket line.
Create solidarity among the strikers.
Build support for their cause.
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Picket Lines 2
In economic and unfair labor practice strikes, picketing is legal but with some legal limitations.
Picket line misconduct such as violence or vandalism is not protected by the N L R A.
It can result in discipline and loss of recall rights at the end of the strike and potential criminal prosecution.
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Picket Lines 3
Picketing raises several other important issues:
Employees who want to work instead of strike and therefore cross their own union’s picket line.
Gives rise to sympathy strikes.
The refusal to cross another union’s picket line.
Picketing to pressure an employer to recognize a union is explicitly limited by the N L R A to 30 days.
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Strikes and Lockouts 2
The decline in strike activity
The United States strike activity in the early 21st century is at an all-time low.
Major strikes and lockouts plummeted from 187 in 1980 to 20 today.
In recent years, the days lost due to strikes involving at least 1,000 workers amounted to a hundredth of 1 percent of total working days.
Strike rates for all negotiations are less than 1 percent in recent years.
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Strikes and Lockouts 3
Why the decline in strike activity?
Not bargaining power decline because this should affect threat of strikes, not actual ones.
Maybe because of greater use of strike replacements.
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Major Strikes, 1,000 workers or more, 1950 to 2018
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Strike Replacements 1
Strike replacements - Employees used or hired to do the work of individuals on strike are called
Temporary strike replacements - Workers who are discharged at the end of the strike.
Legal.
Permanent strike replacements: Workers who continue in their positions after the strike ends.
Legal: based on the Mackay doctrine after the famous Supreme Court N L R B versus Mackay Radio and Telegraph Co. (1938).
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Strike Replacements 2
Replacement workers in unfair labor practice strikes
The Mackay doctrine establishes legality of using permanent strike replacements in economic strikes.
Other court decisions have determined that employers cannot use permanent replacements during an unfair labor practice strike.
Unfair labor practice strikers are entitled to immediate reinstatement.
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Banning Strike Replacements
Banning the use of permanent strike replacements (to make the United States like most other industrialized democracies) was the labor movement’s top legislative priority in 1985 to 1995
Pro-labor arguments.
Workers are essentially fired for striking, so other workers are afraid to strike.
Destruction of the right to strike is asserted to disrupt the balance of the United States labor relations system and give employers vastly greater power.
Pro-business arguments.
The current system is balanced and that banning permanent strike replacements would favor unions.
The use of permanent strike replacements is about maintaining competitiveness not busting unions.
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Strike Replacements 3
Replacement workers in lockouts
A lockout is initiated by the employer rather than the employees.
Defensive lockouts - Occur when an employer locks out employees to prevent losses from an expected strike.
Offensive lockouts - Occur when an employer takes the initiative to pressure the union for a more favorable settlement.
To maintain a balance between employees and employers, hiring permanent replacements is not allowed.
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Other Pressure Tactics 1
Unions believe that employers have escalated economic warfare through the use of strike replacements
Unions have responded by searching for alternatives to strikes: for example, boycotts, work slowdowns, and corporate campaigns.
Though the legality of such tactics is mixed, they have become more important and more frequent since the 1980s.
Boycotts: Campaign to encourage a company’s customers to stop doing business with it
Primary employer - The company for whom the workers involved in the bargaining dispute work.
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Other Pressure Tactics 2
Secondary employer - An organization that does not employ the workers who are involved in the dispute but has some business ties to the primary employer.
Secondary boycotts: Targets secondary employers.
Work slowdowns
Slowdowns try to pressure employers by imposing costs through lowered productivity, but without employees leaving their jobs and going on strike.
Work-to-rule campaign: Employees do their work by exactly following the employer’s rules.
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Other Pressure Tactics 3
Another method for engaging in work slowdowns is the use of partial, quickie, or intermittent strikes
The goal of these job actions is to disrupt an employer’s operations.
As these strikes are a surprise and very short, it is difficult for the employer to hire strike replacements.
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Other Pressure Tactics 4
Corporate campaigns - Seek to bolster inside tactics with external pressure, directed at corporate headquarters by outsiders
Labor supporters see corporate campaigns as important tools for pressuring corporations who seem to hold all the power in a global economy.
Critics see corporate campaigns as manipulating media and regulatory agencies to benefit unionized workers.
Some labor activists have criticized corporate campaigns for being disconnected from rank-and-file workers.
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Third-Party Dispute Resolution 1
Use of a neutral third party to settle bargaining impasses with the goal of avoiding costly strikes
In the private sector third party dispute resolution mechanism is voluntary.
In public sector, is it frequently compulsory.
Three primary third-party dispute resolution mechanisms
Mediation.
Arbitration.
Fact-finding.
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Options for Third Party Dispute Resolution
Table summarizes the low and high degree of third-party control over the negotiating process and the outcome.
Degree of Third Party Control Over the Process
Degree of Third Party Control Over the Outcome
| Degree | Low | High |
| Low | Fact-finding | Mediation |
| High | Arbitration | Med-Arb |
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Third-Party Dispute Resolution 2
A mediator has a high level of control over the negotiating process but not the outcome
An arbitrator has a high level of control over the outcome and not the negotiating process.
Mediators can be either independent practitioners or full-time employees of mediation agencies at the federal level or the state level
Arbitrators either are full-time, self-employed arbitrators or are lawyers or university professors who arbitrate on a part-time basis.
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Mediation 1
A dispute resolution process
A neutral third party, the mediator helps negotiators avoid or resolve an impasse by reaching an agreement.
Mediation is essentially “assisted negotiation”.
In practice, mediation involves a series of meetings with the mediator some joint meetings and some individual meetings with union and management.
The mediation process evolves through several stages.
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Mediation 2
Process of mediation
Setting the stage in which the mediator collects information and establishes ground rules.
Problem solving wherein the mediator works on clarifying the disputed issues and on developing alternative solutions.
The focus of the mediator is achieving a workable agreement.
Depending on the sector, mediation can be voluntary or mandatory
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Interest Arbitration 1
Arbitration resolves disputes by a neutral third-party arbitrator (or panel of arbitrators)
It involves the issuing of a settlement that is binding on the employer, union, and employees.
A hearing is held, evidence is presented by each side, and an arbitrator issues a decision.
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Interest Arbitration 2
Interest arbitration: To resolve interest disputes that results in new contractual terms governing wages and terms and conditions of employment
Imposes a settlement on the parties to the dispute.
The uncertainty of the arbitrator’s choice and the loss of control by the negotiators over the settlement is intended to motivate negotiators to reach their own negotiated agreement without resorting to arbitration.
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Interest Arbitration 3
The two primary forms are:
Conventional arbitration - The arbitrator is not constrained in deciding the settlement terms.
Possible risk of creating a chilling effect: positioning yourself for arbitration by holding back offers during negotiations.
Problematic because arbitration is supposed to encourage settlements without needing arbitration.
Final offer arbitration - the arbitrator must choose between the union’s final offer and the employer’s final offer.
Total package or issue-by-issue.
Initially thought to reduce the chilling effect by making extreme positions riskier but this might be overly simplistic.
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Interest Arbitration 4
Another potential concern with arbitration
Narcotic effect: Negotiators might become addicted to or over dependent on arbitration.
Allows negotiations to “pass the buck” and blame arbitrators for unfavorable settlements.
Interest arbitration is voluntary in the private sector.
Where it is used, it’s typically mandatory in the public sector.
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Fact-Finding 1
Another third-party dispute resolution method
A neutral third party called the fact finder investigates a bargaining impasse and issues a nonbinding recommendations for settlement.
It does not guarantee a resolution.
It does not assist the negotiators.
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Fact-Finding 2
Even without a binding award, the fact-finding report (ideally) helps resolve dispute in three ways:
By establishing a set of unbiased settlement terms, the fact-finding report can help the negotiators reevaluate their positions find an acceptable compromise settlement.
A fact-finding report can let union or management negotiators save face by making concessions under the guise of the report rather than appearing weak.
Making the fact-finding report public can use the glare of publicity to push the parties to a settlement.
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What’s the Best Dispute Resolution Method?
No method is best along all dimensions; each of the alternatives involves trade-offs
Strikes and lockouts can be particularly inefficient and costly to employers, employees, and the public.
Arbitration has 100 percent settlement rates, but doesn’t help the negotiators.
Mediation can help negotiators, but doesn’t guarantee a resolution.
Fact-finding lacks significant control over both the negotiating process and the outcome.
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Major Strikes, 1,000 workers or more, 1950 to 2018 - Text Alternative 1
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The line graph shows the data for lockouts due to strikes. The line graph shows an economic recession for the following years: 1953 to 1954, 1956 to 1958, 1960 to 1961, 1969 to 1971, 1974 to 1976, 1981 to 1982, 1989 to 1991, 2000 to 2001, and 2008 to 2009.
The x-axis on the line graph shows the years, and it ranges from 1950 to 2015 at intervals of five years. The y-axis on the line graph shows the number of major labor strikes in the U S, and it ranges from 0 strikes to 500 strikes at intervals of 50 strikes. The data from the line graph are as follows:
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Major Strikes, 1,000 workers or more, 1950 to 2018 - Text Alternative 2
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Table summarizes data for lockouts due to strikes for year 1950-1985. The column headers are marked as years and the number of major labor strikes in the United States (including 1,000 workers or more).
| Years | The Number of Major Labor Strikes in the U S (including 1,000 Workers or More) |
| 1950 | 422 |
| 1955 | 365 |
| 1960 | 225 |
| 1965 | 280 |
| 1970 | 385 |
| 1975 | 240 |
| 1980 | 195 |
| 1985 | 60 |
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Major Strikes, 1,000 workers or more, 1950 to 2018 - Text Alternative 3
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Table summarizes data for lockouts due to strikes for year 1990-2015. The column headers are marked as years and the number of major labor strikes in the United States (including 1,000 workers or more).
| Years | The Number of Major Labor Strikes in the U S (including 1,000 Workers or More) |
| 1990 | 50 |
| 1995 | 35 |
| 2000 | 42 |
| 2005 | 25 |
| 2010 | 8 |
| 2015 | 12 |
The values given in the table are approximate.
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