Negotiation two-mind map
Chapter 8
Collective Bargaining,
Strikes and Arbitration
(2): Collective Bargaining,
Strikes, and Arbitration
Collective bargaining is the bilateral process of governing labor/management relations in the workplace.
Without a union, the corporation unilaterally
governs.
Negotiating a Contract
The first
part of collective bargaining occurs when union leaders and management representatives
negotiate and (hopefully) agree upon a written collective bargaining
agreement (union contract). This legal document, which is enforceable by arbitrators
and judges, includes:
·
Union rights:
job titles represented by the union, union membership requirements, steward
rights; bulletin board posting rights;
·
Management rights: to manage the workforce, except as limited by the contract;
·
Economic issues: pay rates, hours, pensions, medical insurance, vacations, sick leave;
·
Non-economic issues: work rules, seniority rules - for promotions, layoffs, overtime;
·
Employee rights: “just cause” required to discipline employees, grievance rights,
arbitration of grievances;
·
Miscellaneous:
contract duration, joint labor-management committees, etc.
The process
of collective bargaining to achieve a contract includes several stages:
1.
Each
side (union and management) decides on a list of its contract proposals
(demands). Each side selects a bargaining team and a chief representative, and,
usually, a lawyer.
2.
The
two sides meet and exchange proposals along with opening presentations and
supporting documents. They then take up the various proposals, one by one,
“horse trading” and compromising as they go. Usually, the two sides agree to
keep the progress of the negotiations private. When the negotiations do not
proceed smoothly, the union will often mobilize its membership to show
management that it can organize a strike if the negotiations break down.
Management, on the other hand, may cut overtime or publicize its ability to
move to lower-cost locations. Usually, the two sides agree on a new contract
without resorting to a strike or lockout.
3.
If
the two sides come to an impasse (cannot reach an agreement), management has
the right to impose its last contract offer on the workers. In the private
sector, the union has the right to strike to win its demands or prevent
management from imposing its last contract offer, and management has the right
to “lockout” its employees to force them to accept it.
The Federal
Mediation and Conciliation Service (FMCS) is a government agency that routinely
offers to assist collective
bargaining negotiations by sending in a mediator. In 2011, it mediated 4,700
negotiations, with the vast majority achieving settlements. For example, the
FMCS mediated a new contract between two unions representing 62,000 grocery
workers and three national supermarket chains that had been deadlocked over
rising health care costs.[i]
Management’s
ability to resist strikes has grown in recent years. Its weapons include: Using
management personnel and replacements (“scabs”) to continue production at
struck facilities; moving production to other plants; and informing union
members they will not be allowed to return to work because “permanent
replacements” have replaced them.
Unions have
mainly abandoned the strike weapon because they have learned that they often
lose when they strike, with “permanent replacements” sometimes taking some or
all of their members’ jobs. The U.S. Department of Labor reported only 19 major
strikes and lockouts in 2011 involving 1,000+ workers.[ii]
The largest strike involved 45,000 employees of the telecommunications giant
Verizon who struck in August 2011 for two weeks and returned to work without a
new contract. The two sides agreed to keep the old contract in place while they
continued to negotiate. As of mid-2012, they have not signed a new contract.
In the
public sector, very few workers have the right to strike. Federal and most
state and municipal employees can be fired if they strike. New York City (NYC)
has a particularly harsh public sector labor law, called the Taylor Law (1967).
It says that each striker has to pay a fine of two days’ pay for every day the
worker was on strike, and it allows the government to fine the union and jail
its leaders.[iii]
When NYC’s subway and bus employees struck for three days in 2005, a court
fined the union $1 million per day, jailed its leadership, and denied it the
right to collect members’ dues through payroll “checkoff” (automatic
deduction each month).[iv]
In the
public sector, when the two sides cannot agree on a contract, laws prescribe
many paths forward. U.S. Postal Service and many police and firefighter unions
use an arbitrator (a neutral person chosen by the two sides) to decide
the contract terms. Some states provide a mediator (who helps the two
sides narrow their differences) and then a fact finder (who recommends
new contract terms). In some states, the law allows the employer to impose new
contact terms if one side rejects the fact finder’s recommendation. Often,
there is no mechanism to settle the contract when mediation and fact finding
fails, and negotiations continue for years before the two sides agree on a new
contract.
Enforcing a Contract – Grievance and Arbitration
The second
part of collective bargaining is the ongoing struggle between the two sides to
compel the other side to live up to its contractual obligations. Thus,
management disciplines employees who (it claims) violate attendance rules, work
poorly, disobey instructions, steal, etc. The union responds by filing grievances
(complaints) against the disciplinary actions and often appeals to an
arbitrator for a final and binding decision. The union also files grievances
when (it claims) management underpaid workers, required them to work in an
unsafe environment, discriminated (sexual harassment, racist conduct), or
violated seniority rights, etc.
The courts,
management, and unions strongly support the use of the grievance procedure
(including arbitration) to resolve day-to-day disputes about labor contracts.
Therefore, almost all labor contracts include a “no strike” (and a “no
lockout”) clause prohibiting collective actions that disrupt production
(demonstrations, slowdowns, work-to-rule, sickouts, short strikes, lockouts). However,
unhappy unions and groups of workers sometimes initiate these actions to
protest speed-up, safety hazards, or firing of popular workers. When the union
organizes these “unfair labor practices,” they open the union to being sued.
Individual workers can be fired.
There are
no “labor courts” in the United States. Congress, the Supreme Court, and the
NLRB have decided that labor arbitrators, chosen jointly by management and
labor, should hear and decide almost all grievances. Additionally, the NLRB has
ruled that arbitrators (rather than NLRB specialists) should decide almost all
charges of “unfair labor practices” involving alleged violations of
already-existing contracts.[v]
The same practice exists in the public sector.
Arbitrators
make “final and binding” decisions about alleged contract violations. The union
and the company each pay half of the arbitrator’s fees. This helps to ensure
the arbitrator’s neutrality and allows workers to have free representation. An
arbitrator can order an employer to reinstate to employment and award back pay
to a worker who was fired “without just cause,” but the arbitrator cannot
impose a fine for “pain and suffering” or other damages.
Discussion Questions
Discuss the
right to strike. Should all workers be able to strike? Why?
[i] http://fmcs.gov/assets/files/Public%20Documents/2011_Annual_Report.pdf.
[ii]
http://www.bls.gov/news.release/wkstp.t01.htm In 2009, there was a record low
of 5 major work stoppages involving 13,000 workers. These numbers are tiny,
compared with annual averages in the 1990s (32 strikes; 300,000 workers), 1980s
(75 strikes; 400,000 workers), and 1970s (300 strikes; 1.2 million workers).
[iii] http://www.perb.state.ny.us/stat.asp#str.
[iv] http://www.twu.org/flipbook/2012winter/TWU_Winter2012.pdf.
[v] The National Labor Relations Board, under
the Collyer Doctrine, refers issues to arbitration if they can be resolved
under the collective bargaining agreement. Collyer Insulated Wire 192 N.L.R.B.
837 (N.L.R.B. 1971).
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