Collective Bargaining

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Chapter 9

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Impasse Resolution Procedures Involving a Third-Party Neutral

Impasse

The point in negotiations at which the parties have hardened their bargaining positions and no voluntary settlement of the dispute appears likely.

Mediation

Mediator: an individual with no authority to impose a settlement, who uses persuasion and personal credibility to facilitate the restarting of the bargaining process.

Federal Mediation and Conciliation Service (FMCS)

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Impasse Resolution Procedures Involving a Third-Party Neutral (cont’d)

Fact-Finding

A semi-judicial process used to gather facts and issue a public report containing conclusions and recommended terms of settlement.

Interest Arbitration

Allowing a third party (arbitrator) to hear the bargaining positions of the parties and make a final and binding decision on what should be included in the agreement.

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Exhibit 9.1 Some Relevant Criteria an Arbitrator May Use to Decide
an Interest Bargaining Dispute

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Interest Arbitration Procedures

Conventional Interest Arbitration

The arbitrator considers each party’s settlement terms, and accepts one party’s or fashions a compromise settlement.

Final-Offer Total Package (FOTP)

The parties present their settlement terms on all issues and the arbitrator must choose one package to be implemented in its entirety without alteration.

Final-Offer Issue-by-Issue (FOIBI)

Each issue is considered by the arbitrator rather than the whole package.

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Interest Arbitration: Critical Concerns

Criticisms and concerns about the use of interest arbitration:

Arbitrators tending to “split the difference” in making decisions, resulting in extreme positions for the negotiating parties.

Arbitration’s “chilling effect” on the incentive to reach an agreement when it represents the possibility of gaining more than can be gotten through negotiation.

Arbitration having a “narcotic effect” on the bargaining parties as they come to rely on it.

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Interest Arbitration Procedures (cont’d)

Mediation-Arbitration (Med-Arb)

A mediator serves to facilitate the bargaining process and is also empowered to act as an arbitrator to settle the dispute.

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Other Third-Party Procedures

Arbitration-Mediation (Arb-Med)

Employs one third party to be both arbitrator and mediator, and reverses the procedural order of med-arb.

Tri-Offer Arbitration

Both parties and a neutral third party suggest settlements.

Double Final-Offer Arbitration

Each disputant submits two package proposals of roughly equivalent value.

“Night Baseball” Arbitration

Each side submits sealed final offers and written briefs discussing the relevant issues.

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The Use of Economic Pressure to Resolve Interest Disputes

Union

Strikes

Economic

Unfair labor practice

Sympathy

Illegal Strikes

Partial and wildcat

Jurisdictional

Work Slowdowns

Boycotts

Primary

Secondary

Primary Employer

Lockout

Use of nonunion personnel

Use of temporary replacement workers

Strike Responses

Use of permanent replacement workers

Acceptance of unconditional requests for reinstatement

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Exhibit 9.2 Work Stoppages Involving 1,000 or More Employees in the United States, 1947–2014

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Exhibit 9.3 Conclusions from Research on Work Stoppages Regarding the Likelihood of a Strike

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Strategic Purposes of a Strike

To resolve the union’s internal problems

Remove tensions and release frustrations

Unify diverse factions within the union

Prepare members for a realistic bargaining outcome

Rally members over a bargaining issue

To show management the union’s strength

Convince management of the credibility of the union’s future strike intentions

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Exhibit 9.4 Some Potential Strike or Lockout Costs and Mitigating Actions

Potential Employer Strike or Lockout Costs

Lost sales revenue

Loss of customers/market share (temporary or permanent)

Continued fixed operating costs (e.g., utilities, taxes, rent, maintenance, debt service)

Nonbargaining unit employee payroll costs

Recruitment, selection, and training costs for temporary or permanent replacement workers

Shut-down and start-up costs

Negative publicity

Legal fees

Damage to bargaining relationship or co-worker relations (temporary or permanent)

Increased stress level on managers, employees, and their families

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Exhibit 9.4 Some Potential Strike or Lockout Costs and Mitigating Actions (cont’d)

Potential Employer Actions to Minimize or Limit Such Costs

Build inventory in advance of an anticipated strike

Notify customers and suppliers in advance of strike potential and help arrange alternative sources to meet customer needs

Engage in a publicity campaign to inform the public (customers, civic leaders, and employees) about company efforts to resolve the labor dispute

Shift the struck work to other primary employer-owned plants or outsource such work to other secondary employers

Continue business operations using some combination of non-B.U. employees, B.U. employees willing to cross the union’s picket line, and temporary or permanent striker replacements

Existence of poor product market demand serves to decrease risk of market share loss and sales revenue

Purchase strike insurance or enter mutual aid pact with other employers

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Exhibit 9.4 Some Potential Strike or Lockout Costs and Mitigating Actions (cont’d)

Potential Union or Individual Employee Strike or Lockout Costs

Loss of union members due to voluntary union membership resignation or permanent striker replacement

Loss of wage income or employee benefits coverage

Loss of union dues revenue

Cost of strike benefits provided, if any

Costs of operating a strike (e.g., printing costs, legal fees, picket-line supplies such as coffee, food, or medical aid)

Political cost to union’s leadership if strike isn’t won or won ‘‘big enough’’

Damage to co-worker (peer) relationships between strike supporters and nonsupporters

Continuing personal debt payments (e.g., auto, home, credit card, insurance, and telephone)

Increased level of stress on work stoppage participants, their families, and communities

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Exhibit 9.4 Some Potential Strike or Lockout Costs and Mitigating Actions (cont’d)

Potential Union or Individual Employee Actions to Minimize or Limit Costs

Ensure adequate membership support prior to initiating any strike action

Solicit morale and financial support from outside organizations (e.g., other unions, community groups, general public)

Increase individual savings rate in anticipation of income loss during work stoppage

Work with creditors to delay or reduce monthly debt payments

Ensure adequate funding of union strike benefit fund

Engage in publicity to demonstrate the merits of union members bargaining positions at issue in the work stoppage and the effectiveness of strike efforts to impose added costs on the employer’s ability to operate

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Exhibit 9.4 Some Potential Strike or Lockout Costs and Mitigating Actions (cont’d)

Potential Union or Individual Employee Actions to Minimize or Limit Costs (cont’d)

Recognize the potential effect of product market conditions (e.g., high product demand increases an employer’s cost of lost sales, a high level of market competition increases an employer’s risk of market share loss in the event operations are curtailed)

Recognize the potential effect of labor market conditions (e.g., a relatively low supply of qualified labor reduces the risk of striker replacement)

Establish support groups for strikers and their families to help maintain striker solidarity

Keep strikers informed about the progress of efforts to resolve the labor dispute

Encourage a consumer boycott of the primary employer’s goods or services

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Reinstatement Rights of Unfair Labor Practice and Economic Strikers

Unfair Labor Practice Strikers

Can be temporarily but not permanently replaced.

Are not eligible for back pay lost due to the strike unless their lost wages were directly due to the ULP.

Economic Strikers

Can be temporarily or permanently replaced.

If permanently replaced, a striker has the right to be placed on a preferential recall list (Laidlaw-Fleetwood doctrine).

Can return to work during the strike after making an unconditional request for reinstatement.

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Unlawful Strike Misconduct

Serious Strike Misconduct

Acts of violence directed at managers, co-workers, customers, suppliers, or the general public

Intentional destruction of private property (e.g., acts of vandalism or sabotage)

Verbal threats intended to intimidate or coerce an individual in the exercise of his or her lawful rights

How Conduct Is Judged

Courts considered context in determining the severity of acts (verbal abuse versus thrown objects)

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Employee Picketing Rights

State and Local Laws Restricting Picketing

No picketing activities for unlawful or violent purposes

Limits on times when picketing can occur, noise level, and the number and spacing of pickets

Truthful content and clear identification of the employer involved in the dispute in picketing signs

Private Property Restrictions

No picketing if applied alike to all parties with access

Picketing is allowed if there are no other means to communicate to the intended audience

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Balancing the Rights of Picketing Strikers

First Amendment
Free Speech Rights of Picketing Strikers

Employer
Property Rights

Labor Peace

Free Flow
of Commerce

Public Interests

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Secondary Strikes

Secondary Employer

An employer with no direct authority to resolve the labor dispute.

Business Ally

A secondary employer who:

engages in an activity (e.g., doing struck work) that supports the primary employer during a strike.

has a high degree of interdependence with the primary employer (e.g., captive supplier).

has commingled assets with the primary employer.

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Union Picketing and the LMRA

Section 8 (b) (4)

It is an unfair labor practice for a union to pressure a neutral, secondary employer into becoming involved in a labor dispute.

Informational picketing is allowed unless its intent is to cause employees of a secondary employer to strike their employer.

Sympathy Strikers

Union employees who refuse to cross the picket line of another union to carry out their assigned duties.

Sympathy strikers can be replaced temporarily or permanently if no alternative to their refusal can be found.

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Common Situs Picketing

Moore Dry Dock Doctrine

Common situs picketing of secondary employers is lawful if:

The primary employer is operating on the work site.

Picket signs clearly identify the primary employer.

Picketing is conducted at locations in reasonable proximity to the primary employer’s site operations.

Reserve Gate Doctrine

A union cannot picket at a gate reserved solely for the secondary employer’s use as long as it has reasonable access to the primary employer’s gate.

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Common Situs Picketing (cont’d)

General Electric Doctrine

Picketing is illegal at a gate designated by the primary employer for use by a secondary employer if:

If the gate is used exclusively by the secondary employer.

If the secondary employer is not doing struck work.

The secondary employer’s work does not require a normal work stoppage (i.e., plant-wide maintenance shutdown) for the primary employer.

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Product Picketing

Product Picketing

The picketing of neutral secondary employers who sell the primary employer’s product or service.

Limitations on Product Picketing

Primary employer must be identified as target of picketing.

Picketing must focus only on the primary employer’s products or services.

Picketing that effects a near total or total boycott (merged product doctrine) of the secondary employer is illegal.

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Exhibit 9.5 Handbill Used at Shopping Mall to Influence Shoppers

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National Emergency Dispute Resolution Procedures

National Emergency Strikes

Strikes that threaten to have an adverse effect on the national interest

Federal Methods for Responding to National Emergency Strikes

Presidential seizure or other intervention

Procedures outlined under the Railway Act

Procedures outlined in the LMRA

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Exhibit 9.6 National Emergency Dispute Resolution Procedure under the LMRA

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Key Terms

Mediation
Fact-finding
Interest arbitration
Federal Mediation and Conciliation Service (FMCS)
Conventional interest arbitration (CA)
Chilling effect
Narcotic effect
Final-offer total package (FOTP)
Final-offer issue-by-issue (FOIBI)
Mediation-arbitration
Arbitration-mediation (arb-med)
Tri-offer arbitration
Double final-offer arbitration (DFOA)

“Night Baseball” Arbitration
Strike
Primary employer
Lockout
Unconditional request for reinstatement
Legal strike
Illegal strike
Economic strike
Unfair labor practice strike
Wildcat strike
Sympathy strike
Jurisdictional strike
Protest strikes
General strike
Partial strikes

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Key Terms (cont’d)

Work slowdown
Strike manual
Preferential recall list
Laidlaw-Fleetwood doctrine
Superseniority
Serious strike misconduct
Secondary employer
Informational picketing
Business ally
Struck work
Sympathy striker

“Hot cargo” agreement
Common situs picketing
Moore Dry Dock doctrine
Picketing between the headlights
Reserve gate doctrine
General Electric doctrine
Product picketing
Merged product doctrine
Handbilling
National emergency strikes