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Chapter 07 - Bargaining
CHAPTER 7
Bargaining
Chapter Overview
Bargaining between unions and employers is one of the three very important processes of U.S.
labor relations. The goal of this chapter is for students to understand the behavioral, strategic, and
legal aspects of collectively bargaining contracts in U.S. labor relations. The chapter also
includes discussions of the important practical elements of bargaining, including preparation,
costing, and the timeline of the negotiation process.
The bargaining process starts with labor and management negotiators preparing to bargain.
Bargaining committees, the bargaining time line, and important issues such as identification of
interests and alternatives are thus presented.
Two additional topics further set the stage for understanding what happens at the bargaining table
so they are covered next. First, types of bargaining structures are explored. Second, the grocery
industry is used as real life example to illustrate the various elements of bargaining power and
the bargaining environment.
In following the bargaining time line, the chapter next turns to the bargaining table. After
discussing contract costing, the boundaries of labor negotiations created by labor law are
reviewed. Turning to the conduct of negotiations, the chapter follows Walton and McKersie’s
four subprocesses of bargaining:
Distributive bargaining
Integrative bargaining
Attitudinal structuring
Intraorganizational bargaining
Although distributive bargaining is the type familiar to most people, all four are discussed in
detail, including examples and the overall strategy for using each one.
The chapter also discusses issues relating to reaching agreement, and private sector v. public
sector differences, and concludes with a discussion of the pressures to change from adversarial to
interest-based bargaining.
Note: This chapter follows the negotiating process from preparation to agreement, and for each
step of the process explores the major concepts that negotiators should understand about labor–
management bargaining. To complement this analytical approach (or what some might call the
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Budd, Labor Relations: Striking a Balance, 5e
“science of bargaining”) The Zinnia bargaining simulation provides the opportunity for students
to experience the dynamism of bargaining firsthand—that is, to practice the “art of bargaining.”
Teaching notes for The Zinnia bargaining simulation can be found in the introduction to this
instructor’s manual or in separate document in the instructor’s section of the textbook’s website.
Use of this bargaining simulation is strongly encouraged.
Lecture Tips
The various elements of this chapter can be covered in a relatively straightforward fashion by
following the time line of the bargaining process (that is, start with issues relating to preparing to
bargain, then turn to the actual negotiating process, and then conclude with trying to reach
agreement). To break up a traditional lecture-based approach to this material, I have done three
things.
1. When discussing the legal parameters of the bargaining process (“in good faith” over
mandatory terms and conditions of employment”), I use the labor law discussion case
included in this chapter as a discussion tool. Teaching Notes are at the end of this
document.
2. I use a simple bargaining exercise titled “Hey Buddy, Can you Spare a Computer?” This
is a role playing exercise involving a 10-minute one-on-one negotiation between two
people who probably start fighting over a set of used computers without realizing that
they can share because one only needs them during the day and the other only during the
night. This is similar to the classic orange example from Mary Parker Follett in which
two sisters are fighting over an orange without recognizing that one only needs the juice
and the other only needs the rind. Role sheets for each participant and teaching notes for
this exercise are available for printing in the “Instructor Resources” section of the
textbook’s site in Connect (http://connect.mheducation.com).
This exercise motivates a more careful discussion of bargaining strategies, maybe as part
of a slightly broader discussion of Walton and McKersie’s four subprocesses of
bargaining. Namely, when discussing distributive and integrative bargaining, integrate
examples of what happened during the “Hey Buddy” bargaining exercise.
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Chapter 07 - Bargaining
The Mind Maps exercise is time intensive (perhaps 1.5 hours) so discussion of Chapter 7
might spill over into the following week, but there is usually time to make it up when
covering Chapter 8. Alternatively, the newspaper articles that accompany reflection
question 5 can be used as a discussion tool to illustrate dimensions of the bargaining
environment.
The issue of what happens when bargaining fails is the closing question that leads into the next
chapter.
Lecture Outline
Learning Objectives
Through the process of collective bargaining, employers and unions negotiate terms and
conditions of employment, and put these terms into written contracts, also called collective
bargaining agreements. In the United States these contracts are legally binding and typically last
one to five years, with a three-year duration being the most common.
U.S. union contracts usually include the following subjects:
Compensation: wages, benefits, vacations and holidays, shift premiums, profit sharing
Personnel policies and procedures: layoff, promotion, and transfer policies, overtime and
vacation rules
Employee rights and responsibilities: seniority rights, job standards, workplace rules
Employer rights and responsibilities: management rights, just cause discipline and
discharge, subcontracting, safety standards
Union rights and responsibilities: recognition as bargaining agent, bulletin board, union
security, dues checkoff, shop stewards, no strike clauses
Dispute resolution and ongoing decision making: grievance procedures, committees,
consultation, renegotiation procedures
Compensation items might also be referred to as economic issues, and the other areas are called
administrative or language issues.
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Budd, Labor Relations: Striking a Balance, 5e
I. Preparing to Bargain
A. The longest portion of the time line of a negotiation process is the preparation stage.
B. The preparation stage usually begins at least several months before bargaining begins,
or even 18 months before the start of a particularly large, complex, or pattern-setting
negotiation; it usually involves the following stages:
1. Assembling a team—for the employer team, managerial roles typically determine
bargaining team responsibilities, whereas union bargaining committees are
usually elected by the rank and file.
2. Collecting information— Managers might collect external benchmarking data on
labor costs and other items, and should also review the organization’s financial
performance and strategic plans. The union negotiating committee will likely
survey the rank and file to identify common concerns and goals, and also consult
with its national union. Both sides should also conduct thorough reviews of how
the expiring collective bargaining agreement has performed. Areas of the
contract that have created problems, such as high levels of grievances, should be
noted. These pieces of information form the basis for each side to determine the
following five essential things, from which, both bargaining teams develop
targets, priorities, and strategies:
Their interests (what they are really concerned about)
Options for achieving their interests
External benchmarks of fairness
The other side’s interests
Their best alternative to a negotiated agreement (BATNA)
3. From these, both bargaining teams develop targets, priorities, and strategies.
Extensive checklists for both employer and union negotiators are available to
help guide preparation activities.
4. Creating a strike contingency plan is another important aspect of bargaining
preparations.
5. Sixty days before the existing contract expires, or 90 days in the health care
industry, the parties provide official notification to each other and to the Federal
Mediation and Conciliation Service that they intend to negotiate a new contract.
The bargaining teams then Establish a schedule of bargaining sessions and set
ground rules.
A. An appropriate bargaining unit is defined during the representation process. This unit
is the minimal unit for collective bargaining.
B. Once certified, multiple units can be combined into a single larger bargaining unit for
the purposes of negotiating a contract if the parties agree. The resulting organizational
structure for the collective bargaining process is called the bargaining structure.
C. Bargaining structures range from decentralized to centralized; a decentralized
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Chapter 07 - Bargaining
A. What happens at the bargaining table reflects differences in relative bargaining power
between labor and management. Bargaining power is “the ability to secure another’s
agreement on one’s own terms.” This ability depends on the relative costs of agreeing
and disagreeing; the side that can impose greater disagreement costs on the other will
be in a more powerful position.
B. A critical reason that U.S. labor law protects workers’ efforts at forming unions and
engaging in collective bargaining is to balance bargaining power between a company
and a group of employees.
C. Strikes are the most important way for unions to impose disagreement costs on
employers, so relative bargaining power is closely related to a union’s strike leverage;
a union with strong strike leverage can impose significant costs on management
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Budd, Labor Relations: Striking a Balance, 5e
through a strike, and labor in this situation has strong bargaining power relative to the
employer, resulting in contract terms favoring the employees; the reverse is true if a
union has weak strike leverage.
D. Analyzing relative bargaining power—or strike leverage—consists of identifying the
important elements of the bargaining environment. The bargaining environment is
the diverse set of external influences on labor and management as they sit at a
bargaining table negotiating a contract.
E. The dimensions of the bargaining environment apply equally well to the private and
public sectors.
F. There are at least two key differences between the public and private sectors:
1. Although some services can be privatized or outsourced, essential services must
still be provided. Public sector management does not have the option of moving
to a different location in search of lower labor costs. This places an important
constraint on the business strategies available to public sector managers.
2. Public services are not bought and sold in economic markets; instead the levels
of services are ultimately determined by voters, taxpayers, and elected officials
in the political arena. This heightens the importance of the sociopolitical
dimension of the bargaining environment.
G. These differences lead some to argue that public sector collective bargaining should be
prohibited because public sector unions are too powerful. The evidence, however, does
not support the contention that public sector unions have unlimited bargaining power.
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Chapter 07 - Bargaining
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Budd, Labor Relations: Striking a Balance, 5e
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Chapter 07 - Bargaining
mandatory bargaining item, the NLRB issues a ruling indicating whether the
specific issue is included in their interpretation of “wages, hours, and other terms
and conditions of employment.” Some prominent examples of mandatory and
permissive bargaining items are listed in Table 7.4.
A. Richard Walton and Robert McKersie decomposed the overall labor negotiations
process into four types of bargaining (Table 7.4):
1. Distributive bargaining
2. Integrative bargaining
3. Attitudinal structuring
4. Intraorganizational bargaining
B. In Walton and McKersie’s terminology, these are the four subprocesses of
negotiations—the four types of bargaining that take place in collective bargaining to
negotiate a union contract.
C. The first two subprocesses—distributive and integrative bargaining—are the major
alternatives for negotiating terms and conditions of employment: adversarial
bargaining over conflicts of interest, and collaborative problem solving for issues of
mutual gain.
D. Collective bargaining in both the private and public sectors is a mixture of all four
subprocesses for three reasons:
1. Mainstream industrial relations views employment relationship conflict as a
mixed motive—a mixture of conflicts of interests and shared opportunities for
mutual gain—so both distributive and integrative bargaining are important.
2. The employer–employee–union relationship is a long-term, ongoing affair, so
attitudinal structuring is significant.
3. Both employers and unions have constituencies with diverse interests, so
intraorganizational bargaining is present.
E. Distributive Bargaining.
1. Distributive bargaining is the familiar type of negotiation used to resolve
conflicts of interests—in other words, to distribute the shares of the fixed pie. In
distributive bargaining, the more one side receives, the less the other side
receives, so this type of bargaining is also referred to as zero-sum bargaining.
2. Distributive bargaining is the classic vision of collective bargaining.
3. Wages, benefits, working conditions, and work rules are all viewed as conflictual
issues—improvements benefit the workers and harm the company’s bottom
line(and vice versa).
4. Employers need workers to produce goods and services, and workers need to
work to earn a living—but not at any cost.
5. Parties will pursue and enter a negotiated agreement when the terms of the
agreement are better than their alternatives; for workers, their alternatives
include going on strike and looking for work elsewhere; for employers, the
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Budd, Labor Relations: Striking a Balance, 5e
alternatives are taking a strike, trying to hire new employees, outsourcing, and
moving.
6. The best alternative to a negotiated agreement (BATNA) determines what terms
are minimally acceptable to either side.
7. In distributive bargaining, each side’s BATNA can be thought of as their threat
point or resistance point—they will resist accepting terms less favorable than
their BATNA and will threaten to quit the negotiations and walk away if they
cannot obtain terms at least equal to their BATNA.
It is important to be realistic when assessing your BATNA. Indeed, at least
one mediator prefers the term “most likely alternative to a negotiated
agreement” (MLATNA) to prevent the parties from being anchored by
unachievable alternatives.
8. The major distributive bargaining strategies and tactics are rooted in power—
trying to strengthen the image of your own resistance point while seeking out and
weakening the other side’s impression of their own resistance point.
9. Some of the distributive bargaining tactics may include the following:
Carefully controlling and selectively presenting the information shared
with the other side (typically only the chief negotiator gets to speak at the
bargaining table).
Reacting emotionally to statements made by the other side (or not reacting
at all).
“Educating” the other side about the implications of their proposals, and
staking out strong positions.
10. Pressure tactics might include increasing the other side’s costs of not making an
agreement, such as through union rallies that disrupt production and bring
negative publicity to the employer.
11. The careful sequencing of offers, counteroffers, and concessions lies at the heart
of the distributive bargaining process, and these tactics are designed to quicken
the pace and generosity of the other side’s concessions while reducing the need
to make your own concessions.
12. Hardball tactics such as lies, bluffs, threats, and intimidation are also sometimes
used to achieve these ends, but they may do more harm than good.
13. Conflicts of interests over wages, benefits, working conditions, and work rules
are a central component of collective bargaining in U.S. labor relations.
F. Integrative Bargaining
1. Integrative bargaining seeks to unify (integrate) the common interests of the
parties to a negotiation so that all can become better off; rather than trying to
split a fixed pie as in distributive bargaining, integrative bargaining seeks to
expand the size of the pie.
2. It is joint problem solving that relies heavily on trust and full communication.
3. It is also referred to as:
win–win bargaining because both sides win by expanding the pie.
mutual gains bargaining because of the focus on creating mutual gains
rather than resolving zero-sum conflicts.
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Chapter 07 - Bargaining
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Budd, Labor Relations: Striking a Balance, 5e
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Chapter 07 - Bargaining
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Budd, Labor Relations: Striking a Balance, 5e
A. With the more challenging competitive environment that started in the 1970s and
continues today, collective bargaining has become increasingly divergent.
B. A number of employers have tried to tackle labor cost issues through a forcing
strategy—aggressive distributive bargaining tactics to force weakened labor unions to
grant significant wage, benefit, and work rule concessions.
C. Other bargainers have tried to develop a more cooperative relationship through
attitudinal structuring.
D. Attempts to change the bargaining relationship between an employer and union from
adversarial to integrative highlight important issues of change management and
leadership for both corporate and labor leaders.
E. Attempts to move away from an adversarial bargaining relationship are often
intimately related to broader desires to change the entire labor relations climate. But
such changes often run into sharp opposition.
F. Resistance to many types of organizational changes often stems from the following
factors:
1. Inertia
2. Self-interest
3. Peer pressure
4. Misunderstanding
G. These same elements underlie resistance to changing a bargaining relationship from
adversarial to more integrative.
H. Joint training programs to overcome resistance are important because of the following
reasons:
1. They help address misperceptions of integrative bargaining.
2. They can involve negotiators from both sides to reduce the impression that a
change is serving one side’s hidden agenda.
3. They can develop the participants’ skills so they are comfortable with the
process.
4. They can dispel the simplistic illusion of an all-or-nothing choice between
distributive or integrative bargaining.
I. The four subprocesses of labor negotiations might be present in any negotiation. Many
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Chapter 07 - Bargaining
of the other ideas presented in this chapter, such as the importance of preparation,
diagnosing bargaining power and the bargaining environment, avoiding the fixed pie
bias, and depersonalizing others’ front stage performances, are also equally relevant to
negotiations outside of labor relations.
1. Prepare-explore-agree-implement are the key steps in any successful negotiation.
1. Use the “Hey Buddy, Can you Spare a Computer?” exercise described in the lecture tips
section. Role sheets for each participant and teaching notes for this exercise are available for
printing in the “Instructor Resources” section of the textbook’s site in Connect
(http://connect.mheducation.com).
2. Have students form small groups and complete the reflection questions from “Labor Law
Discussion: Case 6: Does the Duty to Bargain Preclude Unilateral Wage Increases?” Discuss
the outcomes in class. Teaching Notes are at the end of this document.
3. Use the fictitious newspaper article entitled, “PD, Miners Set to Bargain…Again,” to have
students create Mind Maps (see the lecture tips section above) or a traditional outline of the
bargaining environment.
Reflection Questions
1. In a concise paragraph, paraphrase what you have learned about bargaining strategies
to inform a friend about the options for negotiating his or her starting salary and other
items for a new job.
Students’ answers will vary, but should contain references to doing research to find out what
similar jobs are paying, what the candidate has to offer the company, what he/she must have
and what is negotiable, and trying to come up with a win-win result. It might also be helpful
to practice the discussion before actually meeting with the hiring company.
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Budd, Labor Relations: Striking a Balance, 5e
In distributive bargaining, there are only a limited number of pieces to the “pie,”so the more
that one side receives (wins), the less the other side receives (loses). The label can be
misleading because neither sides “loses” to the extent that if they reach agreement, this
agreement must be better than the alternative of no agreement (striking, looking for work
elsewhere, etc.). In layperson’s terms, this is why all negotiations are “win-win”—an
agreement that is better than both sides’ alternatives is beneficial for both sides. But
academics specifically use the term “win-win bargaining” to refer to integrative bargaining
situations in which the focus is on increasing the size of a pie, not distributing it.
3. Choose one of the scenarios from the “HR Strategy: Responding to a Union Organizing
Drive” box at the end of Chapter 6, and assume that the union wins recognition. As an
HR manager, how would you prepare for negotiations? What type of information
would be important for you? What type of bargaining priorities and strategies would
you develop? How would your answers change if you were a union representative?
Students’ answers will vary. Following are the possible responses:
Acme Auto Parts: Contact the other small companies to see how they have been dealing with
the situation. It would be important to know where workers were willing to make
concessions and if the other companies have come up with any creative strategies to satisfy
workers and yet keep a healthy bottom line. My priorities would be to satisfy workers while
keeping a healthy bottom line. My strategy would be to keep financials secret and come up
with alternatives that would not directly affect company profits, such as a longer lunch hour
or additional time off. I would research how to have a decertification election! If I
represented the union, it would be important to know where the company might be willing to
make concessions and if the union has come up with any creative strategies to pressure the
company into getting workers what they want. My priorities would be to satisfy workers
while keeping a healthy bottom line. My strategy would be to have solid reasons for worker
requests, but also come up with alternatives that would not directly affect company profits,
such as a longer lunch hour or additional time off.
The Zinnia: I would prepare a list of all the ways in which Zinnia matches current union
bargaining items. I would research ways to cut benefit costs in case Zinnia is forced to match
more generous union benefit packages. My priorities would be to satisfy workers while
keeping a healthy bottom line. My strategy would be to meet with the unionized hotel HR
people to learn from their experience and formulate ways to increase our bargaining power
in the future. If I represented the union it would be very important to know the types of items
the union had gained in other hotels. My priority would be to equal or surpass this level by
using the other hotels as a precedent.
School District 273: I would prepare by being aware of the current processes and benefits
available to the teachers, anticipate what additional items they may ask for, and compile a
list of reasons why or why not the district would be able to provide those items. It would be
important for me to know what the teachers want, and what the board is willing to give. My
priorities would be to reasonably satisfy the teachers and prevent them from going on strike.
My strategy would be to avoid an “us versus them” atmosphere and to again have solid
information to back up any items I knew the school board might be forced to deny. If I
represented the union, I would need to know what the teachers were asking for and why. I
would need to know what the board was actually capable of providing. I would meet with
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Chapter 07 - Bargaining
the teachers to thoroughly understand their demands, and compile a list of ramifications if
the board did not meet with the teacher requests. I would start off using persuasion, but
would not hesitate to use a strike.
Woodville Health care: I would prepare by trying to anticipate what the doctors will ask for
and compile a list of solid reasons why the company may not be able to comply. I would
research past union successes and failures to understand what their “weak points” might be. I
would need a thorough understanding of where the provider might be willing to bend. My
priorities would be to satisfy the doctors while keeping a healthy bottom line and happy
executives. My strategy would be to gather hard evidence of the inappropriate union
campaigning and use that as a tool, i.e. the information they present may not be true, so how
can the company negotiate? If I represented the union I would portray the provider as the big
bad wolf and the doctors as abused pillars of social society. I would gather all evidence
possible to show that the unreasonable restrictions were placed on the doctors out of greed,
and not in the best interests of the patient.
5. Use the three fictitious newspaper articles that follow this question to analyze the
bargaining environment for contract negotiations between copper producer Phelps
Dodge and Morenci Miners Local 616. Create a traditional outline or a mind map (a
radial outline) for one of the years. Use the major dimensions of the bargaining
environment as your major categories. Note that the newspaper articles are based on
fact but have been embellished for educational use.
Student answers will vary. Following are the possible responses based on the article
published in 1983:
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Budd, Labor Relations: Striking a Balance, 5e
Legal—The Supreme Court is poised to rule whether or not management has the right to
replace striking workers during a labor dispute, overturning the 1938 Mackay ruling. In the
past, MML616 has had to strike to get Phelps Dodge to agree to their demands. This could
put Phelps Dodge in an excellent position and take away some of the union’s power if they
become afraid to strike and be replaced.
Economic—The economic situation is also in favor of Phelps Dodge in regards to contract
negotiations. The recession has shut down some of coppers biggest customers and Phelps
Dodge is currently losing 10 cents on every pound of copper it produces. While economic
times are probably bad for workers, you can’t get blood from a stone. Also, while Phelps
Dodge needs skilled workers in some parts of their operations, there are recently laid off
workers waiting on the sidelines and no doubt many of them possess the skills to step in. The
question is whether or not they would cross the picket line. Without a paycheck for six
months, it is quite likely Phelps Dodge could find a number of takers.
Technical—One aspect of this dimension that favors Phelps Dodge is that new technology is
emerging that will allow the company to extract usable copper from its piles of previously
unusable waste. This provides Phelps Dodge will a low cost source of revenue.
Political—In this particular year, politics are on the side of Phelps Dodge. The firing of the
air traffic controllers is still fresh in everyone’s minds, and President Reagan, believed to be
unsympathetic to unions, is the one making appointments to the National Labor Relations
Board. Labor’s bargaining power is weakened by the current “hostile” climate regarding
labor relations.
Social—Unions only represent a small fraction of the workforce so it’s difficult for labor to
rally support, especially when there are lots of laid off workers in a concessionary
environment.
Business—Phelps’ current business strategy is most likely to make a profit rather than
continuing to lose money on the copper that they produce. Moreover, Phelps Dodge
essentially has a low-cost strategy so an adversarial approach might not be as costly as for a
company with a high-quality approach that needs loyal workers.
Institutional—Labor has been even or the underdog in the last six categories; however their
advantage in this category swings some major weight. Copper unions have traditionally
followed a practice of pattern bargaining, and in a recent settlement wage rates were
preserved and benefits, including COLA, only suffered minor benefit concessions.
1. Contracts typically last one to five years, with three years being quite common. What are the
advantages and disadvantages to the company and labor regarding a one year, three year, and
five year contract?
2. Give an everyday example of distributive bargaining and integrative bargaining not cited in
the text.
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Chapter 07 - Bargaining
Internet Exploration
Additional suggestions beyond the two internet exploration exercises that appear in the text:
1. Search the Internet for descriptions of integrative bargaining in practice (for example, search
for “teachers and interest-based bargaining,” or some other occupation). What types of
benefits are described? Are the areas of resistance consistent with Table 7.7 in the textbook?
2. Explore the Labor Project for Working Families site (www.working-families.org). Why
might labor negotiators need particular help in the area of work-family issues? In what
concrete ways is this a useful site for labor negotiators? Can you find lessons that apply to
other subjects of bargaining in addition to work-family issues?
7-19
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Budd, Labor Relations: Striking a Balance, 5e
Teaching Notes
The Issue
The union was arguing that Winn-Dixie was failing to bargain in good faith by unilaterally
implementing the wage increase.
So in essence, the issue is whether unilateral changes, even after the union has had a chance to
make counterproposals, satisfy the requirement of bargaining in “good faith.”
Discussion
Does the unilateral change fulfill Winn-Dixie’s obligation to collectively bargain with the union?
The employer seemed determined to implement the wage increase whether or not the union
agreed (note how the company wanted to put it into effect “immediately”). Further, the company
stated it was proceeding even after the union disagreed--is this real bargaining? This seems more
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Chapter 07 - Bargaining
like “take it or else,” not good faith bargaining. The Union did not really have a chance to
bargain; rather it had a chance to agree to management’s previously-decided actions. That is not
bargaining.
If this was bargaining, the employer could essentially make any changes it wanted by simply
notifying the union. This violates the principle of collective bargaining.
The lack of impasse is quite important. Remember, the NLRA requires bargaining in good faith,
it does not require agreement. After an impasse is reached, the firm can make unilateral changes
(bargaining to an impasse fulfills the duty to bargain obligation).
Rulings
The NLRB ruled that the company was in violation of Sections 8(a) (5) and 8(a) (1) of the NLRA
by making unilateral changes before bargaining to an impasse.
Remedies
The NLRB issued a cease and desist order requiring Winn-Dixie to bargain collectively with the
union. Additionally, Winn-Dixie was required to post a notice regarding the NLRB order. The
NLRB’s order also stated that “nothing herein shall require Respondent to vary such minimum
salary schedules as are already established.” Note that the NLRB’s decision was issued five years
after the wage increase was implemented.
What is an Impasse?
This case raises the issue of what is an ‘impasse’? An employer (and a union) must bargain to an
impasse, but this doesn’t tell us when an impasse occurs. Unfortunately, “impasse” is another
aspect of labor law that is fairly ambiguous and often requires NLRB interpretation of the
specific facts of a case to make a ruling. For example, in North Star Steel Co., 305 NLRB No. 7
[139 LRRM 1089] (1991), the administrative law judge found that an impasse existed because
“the parties had met for a number of bargaining sessions, failed to reach agreement, and did not
schedule any negotiating sessions after July 18.” In North Star Steel, the board quotes Taft
Broadcasting, 163 NLRB 475, 478 (1967) for guidance in the determination of an impasse:
Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good
faith of the parties in negotiations, the length of the negotiations, the importance of the issue or
issues as to which there is disagreement, the contemporaneous understanding of the parties as to
the state of negotiations are all relevant factors.
These are all vague and situation-specific, so NLRB interpretation is required. In North Star
Steel, the NLRB did not find an impasse because “the record fails to show how many negotiating
sessions were held; the substance of many of those sessions; the importance of the issue, or
issues, separating the parties; and the understanding of the parties as to the state of negotiations.”
Note that impasse is a defense to charges of a unilateral change and thus, the burden of proof is
on the company.
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Budd, Labor Relations: Striking a Balance, 5e
For an example of a union as an employer being charged with failing to reach an impasse before
unilaterally implementing changes, see International Association of Fire Fighters, 304 NLRB No.
47 [139 LRRM 1208] (1991), in which the union representing International Association of Fire
Fighters staff (OPEIU) cancelled one bargaining session and the employer (the Fire Fighters
Union) declared an impasse and unilaterally implemented changes.
This case also raises the issues of what “good faith” bargaining is. In NLRB v. Insurance Agents,
361 U.S. 477, 485 (1960), the Supreme Court stated that “collective bargaining...is not simply an
occasion for purely formal meetings between management and labor, while each maintains an
attitude of take it or leave it; it presupposes a desire to reach ultimate agreement, to enter into a
collective bargaining contract,” and that the parties must deal with each other in a serious attempt
to adjust differences and reach common ground. But what is “serious?” Various cases give
negotiators the following guidance:
Counterproposals must be presented when another party’s proposal is rejected (Majure
Transport Company v. NLRB, 198 F.2d 735 (5th Cir. 1952))
Evasive behavior not permitted (Na-Mac Product Corp., 70 NLRB 298 (1946))
A position with regard to contract terms may not be constantly changed (NLRB v. Norfolk
Shipping & Drydock Corp., 172 F.2d 813 (4th Cir. 1949))
Must be a willingness to incorporate oral agreements into a written contract (Southern
Saddlery Co., 90 NLRB 1205 (1950))
The opposite of these behaviors is surface bargaining (refusing to respond to union proposals,
maintaining predetermined and inflexible positions, using delay tactics to prompt an impasse,
etc.). Other examples of bad-faith bargaining include:
Refusing to furnish info pertaining to a wage increase for non-bargaining unit employees
(Brazos Electric Power Co-Op, 241 NLRB 1016 (1979))
Refusing to grant members of the union’s negotiating committee unpaid leave so they could
bargain while also refusing to bargain during nonworking hours (Indiana & Michigan
Electric Co., 229 NLRB 576 (1977))
Citation
This case is Winn-Dixie Stores, Inc. and United Food and Commercial Workers International
Union, AFL-CIO (243 NLRB 972 (1979).
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